Schroeter, Backbone or Backyard of The Convention, in FS Kritzer (2008), S. 425

Schroeter, The CISG’s Final Provisions 425
Backbone or Backyard of the Convention?

The CISG’s Final Provisions
Ulrich G Schroeter *
Introduction
The United Nations Convention on Contracts for the International Sale of

Goods (CISG) has become the most successful uniform private law conven-
tion in legal history. Proof of this fact is two-fold; on one hand the large
number of Contracting States that have ratified the Convention,1 and on the
other hand – maybe more importantly – the increasing number of cases in
which the CISG has been applied by courts and arbitral tribunals. The excel-
lent case collection that Albert Kritzer, in honour of whom this Festschrift
submission was written, is tirelessly working on,2 bears witness to the Con-
vention’s growing importance in legal practice.
The practical application of the CISG has been significantly facilitated
by the impressive number of scholarly writings that have been dedicated
to various aspects of the Convention. While much has been written about
issues addressed in Parts I-III of the Convention (Articles 1-88 CISG), it is
striking to note that only little attention has been paid to the Convention’s
Part IV, entitled ‘Final Provisions’ (Articles 89-101 CISG). A statement Pro-
fessor Winship made with respect to international uniform law conventions
in general also holds true for the CISG: ‘No commentator – and I barely
exaggerate – spends much time examining the “Final Provisions” of inter-
national conventions.’3 The primary reason for this apparent neglect seems
*
Dr iur (Freie Universität Berlin); Akademischer Rat, Albert-Ludwigs-Universität
Freiburg.
1
At the time of writing, the CISG had 70 Contracting States. More are expected
to follow.
2
Available at: http://cisgw3.law.pace.edu.
3
Winship, P (1990) ‘Final Provisions of UNCITRAL’s International Commercial
Law Conventions’ (24) International Lawyer 711.
426 Sharing International Commercial Law across National Boundaries
to lie in the assumption that the CISG’s Final Provisions exclusively address
questions of public international law, and are therefore of little (if any) in-
terest to international merchants, legal practitioners, courts and arbitrators.
Articles 89-101 CISG, so it is said, are addressed to the States in their treaty-
making capacity,4 and many of the matters they concern are to be handled by
government officers, rather than sellers and buyers.5 From the perspective of
parties engaging in international sales contracts, Part IV of the CISG might
therefore be viewed as the ‘backyard’ of the Convention.
While it is true that the CISG’s Final Provisions are also dealing with
technical issues raised by the Convention’s ratification as well as the related
question which rights and obligations arise from the Convention for the re-
spective Contracting State,6 it would be incorrect to assume that these issues
exclusively belong to the realm of ‘public international law’ and are there-
fore of no concern for the CISG’s practical application. A Contracting State’s
obligations arising from the CISG and the Convention’s application through
the courts of said Contracting State are, in fact, two sides of the same coin.
Professor Honnold has described this as ‘the commitment that Contracting
States make to each other: We will apply these uniform rules in place of our
own domestic law on the assumption that you will do the same.’7
The CISG’s Final Provisions may accordingly have a significant influ-
ence on the Convention’s applicability to a given sales contract, and will of-
ten need to be taken into account by commercial lawyers when dealing with
the CISG. Their location in the concluding part of the Convention should
therefore not distract from the fact that many of the provisions in Part IV ad-
dress matters which are also regulated elsewhere in the Convention: From a
functional perspective, Articles 92-97, 100, 101 CISG belong to Part I, while
Articles 92, 96, 100, 101 CISG in addition belong to Parts II and III. The
4
Winship ‘Final Provisions’ supra fn 3 at 713.
5
Cf Honnold, JO (1999) Uniform Law for International Sales under the 1980
United Nations Convention (3rd ed) Kluwer at para 458.
6
See Schlechtriem, P (1986) Uniform Sales Law – The UN-Convention on Con-
tracts for the International Sale of Goods Manz at p 22: ‘Part IV (Articles 89-101)
contains in the Final Provisions the obligations of the Contracting States.’
7
Honnold Uniform Law supra fn 5 at para 103.2. The application of the CISG
does, one might add, not always have a public international law ‘side’ to it: the latter
is missing whenever a CISG case is decided by either a court in a Non-Contracting
State, or an arbitral tribunal.
close connection that exists between Part IV and the other parts of the CISG
becomes particularly obvious when looking at Articles 12 and 96 CISG:
These two provisions deal with exactly the same question in exactly the same
way, but have (for no apparent reason8) been placed into two separate parts of
the Convention.9 When discussing ‘Final Provisions’, it is therefore always
necessary to look at the subject matter of each individual provision, and not
merely at their location in Part IV of the CISG.
This article provides an overview of the most important questions that
Articles 89-101 CISG have raised, and in particular focuses on those issues
that have been discussed by case law.10
Interpretation of Articles 89-101 CISG
In order to be able to deal with pertinent issues involving the Convention’s

‘Final Provisions’, it it is first necessary to determine which rules govern the
interpretation of Articles 89-101 CISG.
Provisions Governing the Interpretation
In this respect, a number of different approaches have been advocated: While

the majority of authors point to the public international law character of Part
IV and argue that the applicable rules of interpretation are exclusively those
provided for in Articles 31-33 of the Vienna Convention on the Law of Trea-
8
For a discussion of the drafting history see Schroeter, UG (2005) UN-Kaufrecht
und Europäisches Gemeinschaftsrecht – Verhältnis und Wechselwirkungen Sellier
European Law Publishers at § 8 para 27.
9
Article 12 CISG is, strictly speaking, superfluous; see Herber, R and Czerwenka,
B (1991) Internationales Kaufrecht C.H. Beck at Art 12 para 5; Schroeter UN-Kauf-
recht und Europäisches Gemeinschaftsrecht supra fn 8 at § 8 para 27; but see Ender-
lein, F and Maskow, D (1992) International Sales Law Oceana at Art 12 no. 2.1.
10
Note that the UNCITRAL Digest of case law on the United Nations Convention
on the International Sales of Goods (published in 2004) does not cover the provisions
in Part IV of the Convention. I have attempted to fill this gap by reviewing all relevant
cases and arbitral awards listed in the Pace database (http://cisgw3.law.pace.edu):
From a public international law perspective, Al’s collection of case law on the CISG
is reporting on decades of treaty practice.
ties of 23 May 1969 (thereby excluding the application of Article 7(1) CISG
to Articles 89-101 CISG),11 others allow for a parallel application of Arti-
cles 31-33 Convention on the Law of Treaties and Article 7(1) CISG.12 It is
submitted that the latter approach should be followed, as Article 7(1) CISG
explicitly demands that ‘[i]n the interpretation of this Convention regard is to
be had to its international character and to the need to promote uniformity in
its application and the observance of good faith in international trade’:13 By
using the term ‘this Convention’, Article 7(1) CISG refers to the Convention
in its entirety (including its Part IV), as can be deduced from the terminology
employed elsewhere in the CISG – whenever a CISG provision merely refers
to a specific Part or individual article of the Convention, it specifically says
so.14 Accordingly, Article 7(1) CISG governs the interpretation of Articles
89-101 CISG,15 thus eg allowing recourse to these provisions’ legislative
history in situations in which the more narrowly drafted rule in Article 32
Vienna Convention on the Law of Treaties would prohibit this step. The re-
siduary rules in Articles 31-33 Vienna Convention on the Law of Treaties
can, on the contrary, only be applied as far as their content is compatible with
Article 7(1) CISG.16
11
Enderlein and Maskow International Sales Law supra fn 9 at Art 7 no 2.2; Happ,
R (1997) ‘Anwendbarkeit völkerrechtlicher Auslegungsmethoden auf das UN-Kauf-
recht’ Recht der Internationalen Wirtschaft 376 at 377-378; Reinhart, G (1991) UN-
Kaufrecht C.F. Müller at Art 7 para 8; Witz, W in Witz, W, Salger, H-C and Lorenz, M
(2000) International Einheitliches Kaufrecht Recht und Wirtschaft at Art 7 para 6.
12
Piltz, B (1993) Internationales Kaufrecht C.H. Beck at 66.
13
Emphasis added.
14
See Article 12 CISG (‘Any provision of article 11, article 29 or Part II of this
Convention…’), Article 24 CISG (‘For the purposes of this Part of the Convention’),
Article 27 CISG (‘…in this Part of the Convention,…’), Article 92(1), (2) CISG (‘…
Part II of this Convention or […] Part III of this Convention’), Article 96 CISG (‘…
any provision of article 11, article 29 or Part II of this Convention…’) and Arti-
cle 101(1) CISG (‘…this Convention, or Part II or Part III of the Convention…’).
15
Schroeter, UG (2004) ‘The Status of Hong Kong and Macao under the United
Nations Convention on Contracts for the International Sale of Goods’ (16) Pace
International Law Review 307 at 323, available at: http://www.schroeter.li/pdf/
Schroeter_16_Pace_Intl_L_Rev_2004_307.pdf; Schroeter UN-Kaufrecht und Eu-
ropäisches Gemeinschaftsrecht supra fn 8 at § 8 para 31.
16
Schroeter UN-Kaufrecht und Europäisches Gemeinschaftsrecht supra fn 8 at § 8
para 32.
Language Versions of the Convention
A special question that may arise in the course of interpreting Part IV of

the CISG is which language version of the provision should be looked to.
Although often discussed in connection with Article 7(1) CISG, this issue is
specifically addressed in the so-called ‘Witness Clause’ which concludes the
Final Clauses of the CISG and specifies that (only) the Convention’s texts in
the six official languages of the United Nations – Arabic, Chinese, English,
French, Russian and Spanish – are ‘equally authentic’.
This clause, which conforms to common treaty practice, should however
not be taken at face value, because not all of the authentic language versions
represent the decisions made by the Convention’s drafters in equal measure:
the English language was the one primarily used during the discussions in
Vienna and, maybe more importantly, the only language used by the Diplo-
matic Conference’s drafting committee which produced the final text of the
provisions.17 The Convention’s English text version should therefore, in this
author’s opinion and based on Article 7(1) CISG, be accorded prevalence
where it is in conflict with other language versions,18 as the latter are some-
times not more than less-than-accurate translations of the English version.19
17
Schlechtriem, P in Schlechtriem, P and Schwenzer, I (eds) (2005) Commentary
on the UN Convention on the International Sale of Goods (CISG) (2nd ed) Oxford
University Press at Art 7 para 22.
18
See Swiss Supreme Court, 13 November 2003, available at: http://cisgw3.law.
pace.edu/cases/031113s1.html holding that the English version, and, secondarily, the
French version are to be given a higher significance as English and French were
the official languages of the Conference and the negotiations were predominantly
conducted in English; Brunner, C (2004) UN-Kaufrecht – CISG Stämpfli at 554;
Diedrich, F (1996) ‘Maintaining Uniformity in International Uniform Law via Au-
tonomous Interpretation: Software Contracts and the CISG’ (8) Pace International
Law Review 303 at 317-318; Schlechtriem in Schlechtriem & Schwenzer Commen-
tary supra fn 17 at Art 7 para 22; contra Flechtner, HM (1998) ‘The Several Texts of
the CISG in a Decentralized System: Observations on Translations, Reservations and
other Challenges to the Uniformity Principle in Article 7(1)’ (17) Journal of Law and
Commerce 187 at 208.
19
On the Spanish text of the CISG, see Barrera Graf, J (1982) ‘The Vienna Con-
vention on International Sales Contracts and Mexican Law: A Comparative Study’
(1) Arizona Journal of International and Comparative Law 122 at 142. Cf also the
general remarks by Aust, A (2000) Modern Treaty Law and Practice Cambridge Uni-
versity Press at 203-204: ‘In practice the translations of multilateral treaties are done
This lack of exactness has also been tacitly acknowledged by the depositary
of the Convention (Article 89 CISG), who in recent years has published rec-
tifications of both the authentic Arabic and Russian text versions.20
Reservations
Among the thirteen articles that make up Part IV of the Convention, the
majority lay down one and the same type of final clauses: reservations. Ac-
cording to the definition in Article 2(1)(d) Vienna Convention on the Law
of Treaties, a ‘reservation’ means a unilateral statement, however phrased
or named, made by a State, when signing, ratifying, accepting, approving
or acceding to a treaty, whereby it purports to exclude or to modify the legal
effect of certain provisions of the treaty in their application to that State.
The CISG’s Final Provisions authorize five reservations21 which a Contract-
ing State may declare (multiple reservations are possible22): Article 92 CISG
(entitling States to declare that they will not be bound by Part II or by Part III
of the Convention),23 Article 93 CISG (the so-called ‘federal state clause’, al-
lowing certain States to restrict the Convention to only some of their territo-
rial units), Article 94 CISG (authorizing Contracting States that have closely
related legal systems to exclude application of the CISG to contracts be-
by translators who, though highly professional, will not have been at the negotiations,
and may not necessarily appreciate all the nuances of the final text.’
20
Depositary notifications C.N.862.1998.TREATIES-5 of 19 February 1999 (procès-
verbal of rectification of the authentic Arabic text), C.N.233.2000.TREATIES-2 of 27
April 2000 (rectification of the Russian authentic text) and C.N.1075.2000.TREA-
TIES-5 of 1 December 2000 (rectification of the original of the Convention [Arabic
authentic text]).
21
This is at least the count favored by most commentators; see eg Flechtner ‘The
Several Texts of the CISG’ supra fn 18 at 193; Torsello, M (2000) ‘Reservations to
international uniform commercial law Conventions’ Uniform Law Review 85 at 91.
Others have pointed out that the declaration authorized by Article 93 CISG does not
constitute a reservation stricto sensu, cf Aust Modern Treaty Law supra fn 19 at p
170-171.
22
But see Torsello ‘Reservations’ supra fn 21 at 116 (with a hardly convincing
reasoning).
23
Lookofsky, J (2000) ‘The 1980 United Nations Convention on Contracts for
the International Sale of Goods’ in Blanpain, R (ed) International Encyclopaedia
of Laws – Contracts Kluwer at para 328: ‘surely the most far-reaching reservation
permitted’.
tween enterprises situated in these States), Article 95 CISG (entitling States

to declare that they will not be bound by Article 1(1)(b) CISG) and finally
Article 96 CISG (authorizing States to exclude the application of the Con-
vention’s provisions on freedom of form), with eleven reserving States the
Convention’s most popular reservation.24 Technical questions surrounding
the making of declarations under the Convention are governed by Article 97
CISG, and Article 98 CISG clarifies that no reservations are permitted except
those expressly authorized in the Convention.
The fact that the Convention allows for reservations at all has often been
criticized for allegedly having both decreased uniformity and increased the
likelihood of confusion regarding the application of the CISG.25 What is cer-
tainly true is that it is not always easy to determine the precise effect that a
given reservation has on the Convention’s practical application. The main
difficulty results from the necessity to ‘translate’ a declaration under public
international law – the reservation – into a language familiar to the commer-
cial lawyers and judges entrusted with applying the CISG. As will be dem-
onstrated in more detail below, most problems in this respect can be solved
by staying true to the wording of the CISG’s Final Provisions. This approach
usually leaves no room for calling upon the (residuary!) rules in the Vienna
Convention on the Law of Treaties which deal with reservations in general,26
as these are being displaced by Articles 92-98 CISG.27
But: Do the Convention’s reservations in the past have really lead to
non-uniformity and confusion? This question can only be properly answered
24
Argentina, Belarus, Chile, China, Hungary, Latvia, Lithuania, Paraguay, Russian
Federation, Ukraine. Estonia’s initial reservation has since been withdrawn.
25
Bailey, JE (1999) ‘Facing the Truth: Seeing the Convention on Contracts for
the International Sale of Goods as an Obstacle to a Uniform Law of International
Sales’ (32) Cornell International Law Journal 273 at 311; Flechtner ‘The Several
Texts of the CISG’ supra fn 18 at 193: ‘reservations have produced substantial non-
uniformity’.
26
Cf Bridge, M (1999) The International Sale of Goods: Law and Practice Oxford
University Press at para 2.45.
27
For an approach similar to the one advocated here, see Bridge, M (2005) ‘Uni-
form and Harmonized Sales Law: Choice of Law Issues’ in Fawcett, JJ, Harris, JM
and Bridge, M International Sale of Goods in the Conflict of Laws Oxford University
Press at para 16.122: ‘Whatever the impact of the reservations, they must first be
interpreted to see how far they are intended to go’.
by looking at the role that Articles 92-96 CISG have come to play in the Con-
vention’s practical application by courts and arbitral tribunals.28
Conditions Under Which a Reservation May Be Made under the CISG
It first should be noted that not all reservations are open for every Contract-
ing State’s use: While some of the Convention’s reservations can be declared
by any State which so desires (Articles 92 and 95 CISG), others provide for
certain conditions which need to be satisfied if a Contracting State wants to
make use of the reservation (cf Article 19(b) Vienna Convention on the Law
of Treaties).
Conditions Laid Down by CISG’s Reservations
Article 93 CISG
The ‘federal state clause’ in Article 93 CISG is only open to a State which
‘has two or more territorial units in which, according to its constitution, dif-
ferent systems of law are applicable in relation to the matters dealt with in
this Convention’ (Article 93(1) CISG). The term ‘territorial unit’ is flexible
enough to include States, cantons, provinces, union republics,29 emirates,
oversea territories or even Member States.30 Commentators have convinc-
ingly stressed that Article 93(1) CISG requires that a certain independence
28
The divergence between the (significant) attention that certain reservations have
received in scholarly writing and the (limited) importance they have gained in the
Convention’s practical application is particularly striking when it comes to Article
95 CISG: While this provision has been scrutinized with a truly frightening thor-
oughness, its practical impact (on Article 1(1)(b) CISG) is diminishing by the day,
since Article 1(1)(a) CISG has long become the by far more important basis for the
Convention’s application. See Bridge The International Sale of Goods supra fn 26 at
para 2.45: ‘The Article 95 problem is a dying one, the victim of the success of the
CISG...’.
29
Herber and Czerwenka Internationales Kaufrecht supra fn 9 at Art 93 para 2.
30
For a potential application of Article 93(1) CISG to Member States of the Europe-
an Communities see Schroeter UN-Kaufrecht und Europäisches Gemeinschaftsrecht
supra fn 8 at § 19 para 32.
of the ‘territorial unit’ is provided for in the State’s constitution itself,31 while
it is insufficient that the power to legislate on certain matters has merely
been delegated to a territorial unit. This interpretation is supported by both
purpose and legislative history of the provision, which was intended to en-
able a State to accede to the CISG with respect to individual units, even if
it is unable to do so for all of its territorial divisions as it lacks competence
over the legal matters governed by the CISG.32 The relevant point in time is
the moment the declaration is made, not the moment the Convention enters
into force for the declaring State. Accordingly, a declaration under Article 93
CISG can also be made if the prerequisites described above have only come
into existence after the State had acceded to the Convention, eg because of a
change to its constitution or because the State extended its territory by way
of an accession of new ‘territorial units’. The latter has been the case with
the People’s Republic of China when Hong Kong and subsequently Macao
became part of the PRC as ‘Special Administrative Regions’.33
Article 94 CISG
Article 94(1), (2) CISG restrict the Contracting States which may avail them-
selves of the reservation to those ‘which have the same or closely related
legal rules on matters governed by this Convention’. While ‘the same’ legal
rules can easily be construed as referring to uniform law in force in the coun-
31
Evans, M in Bianca, CM and Bonell, MJ (eds) (1987) Commentary on the
International Sales Law: The 1980 Vienna Sales Convention Guiffrè at Art 93 para
2.1; Schlechtriem in Schlechtriem & Schwenzer Commentary supra fn 17 at Art 93
para 3; Sono, K (1986) ‘Commentary on the Convention on the Limitation Period in
the International Sale of Goods, done at New York, 14 June 1974’ in UNCITRAL (ed)
The United Nations Commission on International Trade Law United Nations at 107:
‘an important qualification’ (on Article 31(1) of the UNCITRAL Limitation Conven-
tion, which served as a model for Article 93 CISG).
32
Schlechtriem in Schlechtriem & Schwenzer Commentary supra fn 17 at Art 93
para 1.
33
Schroeter ‘The Status of Hong Kong and Macao’ supra fn 15 at 321-322; see also
the discussion infra at p 462-463.
tries concerned,34 the term ‘closely related’ remains regrettably vague.35 The
drafting history of Article 94 CISG provides no particular guidance either,
as a variety of potentially covered cases were discussed: The most important
one (and, indeed, the reason why the reservation had been developed in the
first place) was the Nordic uniform sales law implemented by the Scandi-
navian States (which later became the only States to make use of Article 94
CISG), but an envisaged uniform sales law between the Benelux countries
(which never materialized) and the closely related legal rules in Australia
and New Zealand were also mentioned.36 In the later academic discussion,
Article 94 CISG was thought to be potentially applicable to the relationship
between the United Kingdom and Commonwealth countries which still have
sales legislation modelled on the English Sale of Goods Act37 as well as be-
tween Canada and the United States,38 but not to the countries belonging to
the Romanistic legal family (Italy, France and Spain).39
In the end, the line between (merely) related and ‘closely’ related legal
rules remains difficult to draw. Article 94 CISG eventually provides little
guidance in this respect. The preferable approach is therefore to accept that
it is left to the States contemplating the reservation to decide for themselves
34
It is submitted that uniform law conventions – which are the most important
(although not the only) source of uniform law – may prevail over the CISG by way
of Article 90 CISG, but may similarly be covered by Article 94 CISG; see Bridge
‘Uniform and Harmonized Sales Law’ supra fn 27 at para 16.126; Enderlein and
Maskow International Sales Law supra fn 9 at Art 94 no 1; Schroeter UN-Kaufrecht
und Europäisches Gemeinschaftsrecht supra fn 8 at § 10 para 14.
35
Torsello ‘Reservations’ supra fn 21 at 95.
36
See Delegates Fokkema (Netherlands) and Bennett (Australia) in (1981) United
Nations Conference on Contracts for the International Sale of Goods, Vienna, 10
March – 11 April 1980, Official Records, Documents of the Conference and Summary
Records of the Plenary Meetings and of the Meetings of the Main Committees United
Nations p 436.
37
Winship, P (1983) ‘The Scope of the Vienna Convention on International Sales
Contracts’ in Galston, N and Smit, H (eds) International Sales: The United Nations
Convention on Contracts for the International Sale of Goods Matthew Bender at p
1-46.
38
Ziegel, J (1982) ‘The Vienna International Sales Convention’ in Ziegel, J and
Graham, W (eds) New Dimensions in International Trade Law: A Canadian Perspec-
tive Butterworths 38 at 52.
39
Torsello ‘Reservations’ supra fn 21 at 95.
what is to be considered as ‘closely related’.40 The vagueness as to this res-

ervation’s conditions is somewhat balanced by the requirement of a specific
declaration (cf Article 97(2) CISG), albeit not completely: Practically speak-
ing, legal rules are closely related in the sense of Article 94 CISG if and when
the reserving States declare them to be.
Article 96 CISG
A declaration under Article 96 CISG may only be made by a State which,
under its domestic legislation, requires written form for contracts of sale.
From the wording of the provision alone it is not entirely clear what kind
of domestic form requirements Article 96 CISG refers to: Some commenta-
tors argue that Article 96 CISG should not be read as imposing a particular
threshold as to the required content and scope of domestic form legislation.41
Others convincingly stress that the requirement must basically exist for all
contracts of sale and not merely for certain types, and point to the drafting
history of the reservation:42 A Netherlands proposal to let a limited domestic
writing requirement suffice was discussed in detail at the Diplomatic Confer-
ence in Vienna, but eventually rejected.43
Legal Consequences when Conditions are not (or no longer) Satisfied
As has been demonstrated, most prerequisites mentioned in Articles 93, 94

and 96 CISG pertain to the content of the domestic law of the reserving State.
Reservations, as the Convention which they form part of, have a long life,
40
Brunner UN-Kaufrecht supra fn 18 at Art 94 para 2; Enderlein and Maskow
International Sales Law supra fn 9 at Art 94 no 1; Magnus, U in (2005) J. von Stau-
dingers Kommentar zum Bürgerlichen Gesetzbuch: Wiener UN-Kaufrecht (CISG)
Sellier-de Gruyter at Art 94 para 5.
41
Enderlein and Maskow International Sales Law supra fn 9 at Art 96 no. 2; Tor-
sello ‘Reservations’ supra fn 21 at 111.
42
Garro, AM ‘The U.N. Sales Convention in the Americas: Recent Developments’
(17) Journal of Law and Commerce 219 at 228; Rajski, J in Bianca & Bonell Com-
mentary supra fn 31 at Art 96 para 3.1; Schlechtriem in Schlechtriem & Schwenzer
Commentary supra fn 17 at Art 96 para 2; Schroeter UN-Kaufrecht und Europäisches
Gemeinschaftsrecht supra fn 8 at § 6 para 303.
43
See Official Records supra fn 36 p 271 et seq.
and domestic laws may change. This raises the following question: Which
legal effect, if any, should a reservation have under the CISG if the require-
ments for making such a declaration were either not met to begin with or
have disappeared at a later stage?
To this end, doubts have in recent years been expressed eg with respect
to Denmark’s reservation under Article 94 CISG (as Denmark has refused
to adopt modifications the other Scandinavian States have implemented into
their domestic sales laws, arguably resulting in the Danish law no longer be-
ing ‘closely related’ to the laws of its northern neighbours)44 as well as with
respect to Argentina’s and Chile’s reservations under Article 96 CISG (as
neither the legislation in Argentina nor Chile prescribes a mandatory written
form for all sales contracts).45 Similar doubts have frequently been expressed
about the Article 96-reservation made by the People’s Republic of China, as
China’s current domestic law no longer requires all international sales con-
tracts to be concluded in writing.46
Assuming for the moment that the assessments reported are accurate,
what are the consequences for the application of the Convention? While it
has been suggested that a reservation must be considered ineffective when
its conditions are not satisfied (and should therefore be disregarded by the
courts),47 the opposing view seems to be correct: Article 97(4) CISG des-
ignates the (it is submitted, only) way by which a reservation’s effect may
be removed, ie through its withdrawal by a formal notification in writing
addressed to the depositary. The procedure provided by Article 97(4) CISG
thus precludes courts in the various Contracting States from making their
own (and possibly divergent) assessments about the compatibility of national
44
Lookofsky, J (1999) ‘Alive and Well in Scandinavia: CISG Part II’ (18) Journal
of Law and Commerce 289 at 290.
45
Garro ‘The U.N. Sales Convention in the Americas’ supra fn 42 at 229.
46
Wang, X and Andersen, CB (2004) ‘The Chinese Declaration against Oral Con-
tracts under the CISG’ (8) Vindobona Journal of International Commercial Law and
Arbitration 145 at 152; Wu, D (2005) ‘CIETAC’s Practice on the CISG’ Nordic Jour-
nal of Commercial Law issue 2005#2 at 12-13; Yang, F (2006) ‘The Application of
the CISG in the Current PRC Law and CIETAC Arbitration Practice’ Nordic Journal
of Commercial Law issue 2006#2 at 15.
47
Torsello ‘Reservations’ supra fn 21 at 111 and 117; Wolff, L-C (2008) ‘VR Chi-
na: Neue IPR-Regeln für Verträge’ Praxis des Internationalen Privat- und Verfahren-
srechts 55 at 57 fn 38 (on the Chinese Article 96-reservation).
laws with Articles 93, 94 and 96 CISG, and thereby avoids a significant legal
uncertainty which might otherwise arise.48
Time at which a Reservation may be made
The Convention’s reservations can be divided into two groups based on the
time at which they may be declared: In accordance with the general rule laid
down in Article 19 of the Vienna Convention on the Law of Treaties, three
reservations may only be made at the time of signature, ratification, accept-
ance, approval or accession (Articles 92, 93 and 95 CISG), while the CISG’s
drafters have generously allowed two others (Articles 94 and 96 CISG) to
be made ‘at any time’. Within their scope of application, Articles 94 and 96
CISG accordingly provide the Convention with a greater flexibility in deal-
ing with future legal developments on a national or regional level, by leav-
ing room for an increasing regional harmonization in matters of sales law
(Article 94 CISG)49 or for a later introduction of written form requirements
into the domestic legislation of Contracting States (Article 96 CISG).50 This
arguably is a very useful feature, as it allows the Convention – which has oc-
casionally been criticized as resulting in a ‘petrification’ of the law of sales
– to adopt to changing circumstances.
Legal Effects of Reservations made
Effect as to Subject Matter: Which of the Convention’s Rules are Modified?
Article 92 CISG
The effect of an Article 92-reservation is to modify the application of the
term ‘Contracting State’ in both Articles 1(1)(a) and 1(1)(b) CISG: As, ac-
cording to Article 92(2) CISG, the reserving State ‘is not to be considered a
48
See Wang and Andersen ‘The Chinese Declaration’ supra fn 46 at 163-164; Witz
in Witz, Salger & Lorenz International Einheitliches Kaufrecht supra fn 11 at Art 94
para 5.
49
para 8; Schroeter UN-Kaufrecht und Europäisches Gemeinschaftsrecht supra fn 8 at
§ 10 para 30.
50
Enderlein and Maskow International Sales Law supra fn 9 at Art 96 no. 3.
Contracting State’ within the meaning of Article 1(1) CISG, Article 1(1)(a)
CISG cannot lead to the applicability of the CISG’s rules where one of the
parties to the sales contract has its place of business in the reserving State.51
The Convention is furthermore not applicable by virtue of Article 1(1)(b)
CISG when the private international law rules of the forum declare the law
of the reserving State to be applicable to the contract. It should, however,
be noted that the effect which an Article 92-reservation has on Article 1(1)
CISG is limited in two respects:
First, the effect only extends to the Part of the CISG covered by the
reservation made, ie either Part II (contract conclusion) or Part III (rights
and obligations under a sales contract). If the reservation pertains to Part II
(as all Article 92-reservations made until now do), it accordingly affects the
applicability of Articles 14-24 CISG. But the reservation should, it is submit-
ted, be read as also extending to any ‘general principles’ underlying Articles
14-24 CISG which, in accordance with Article 7(2) CISG, may be invoked
eg where a contractual agreement has been reached without clearly identifi-
able elements of offer and acceptance.52 (A German court, however, has ruled
otherwise.53) In Mitchell Aircraft Spares v. European Aircraft Service, a U.S.
District Court was faced with another question relating to the effect of an
Article 92-reservation: When the reservation displaces the application of the
Convention’s rules on contract formation in favour of Illinois law which rec-
51
U.S. District Court [N.D. of Illinois], 27 October 1998 (Mitchell Aircraft Spares
v. European Aircraft Service), 23 F. Supp. 2d 915, available at: http://cisgw3.law.
pace.edu/cases/981027u1.html. But see Oberlandesgericht Naumburg (Germany), 27
April 1999, available at: http://cisgw3.law.pace.edu/cases/990427g1.html: the Con-
vention was declared applicable to a contract between a Danish seller and a German
buyer by virtue of Article 1(1)(a) CISG, and Articles 14-19 CISG were applied in
order to determine whether a contract had been concluded – the Danish Article 92
CISG-reservation was accordingly overlooked; Oberlandesgericht Frankfurt (Ger-
many), 4 March 1994, available at: http://cisgw3.law.pace.edu/cases/940304g1.
html: Articles 14, 19 CISG were applied to a contract between a German seller and
a Swedish buyer by virtue of Article 1(1)(a) CISG – the Swedish Article 92 CISG-
reservation was overlooked.
52
See Schlechtriem in Schlechtriem & Schwenzer Commentary supra fn 17 at Intro
to Arts 14-24 para 5.
53
Oberlandesgericht München (Germany), 8 March 1995, Recht der International-
en Wirtschaft (1996), 854, available at: http://cisgw3.law.pace.edu/cases/950308g1.
html; cf Schlechtriem’s critique in Schlechtriem & Schwenzer Commentary supra fn
17 at Intro to Arts 14-24 para 10: ‘unclear’.
ognizes the ‘parol evidence rule’, should this rule – which generally is inap-
plicable in CISG cases54 – be applied to the contract formation at hand? The
court answered in the negative and argued that the issue of parol evidence
is addressed in Article 8 CISG, which – forming part of Part I of the CISG
– remains unaffected by the declaration under Article 92 CISG;55 a possible,
but certainly not the only imaginable result. It is furthermore interesting to
note that a State declaring that it will not be bound by Part II will apparently
nevertheless be bound by Article 29 CISG (governing modifications of con-
tract), as the latter provision is located in Part III of the CISG. This raises the
question if an agreement under Article 29(1) CISG to modify, supplement or
terminate a contract of sale will be subject to Articles 14-24 CISG, or if the
reservation has to be read as also covering matters of contract modification.
The wording of Article 92 CISG militates in favor of the former approach,56
as does a comparison with the wording of Article 96 CISG, which explicitly
speaks of ‘article 29, or Part II of this Convention’.
Second, it has to be kept in mind that an Article 92-reservation does not
affect Article 1(1)(b) CISG in situations where the conflict of law rules point
to the law of another Contracting State, which has not made a reservation
under Article 92 CISG – in these cases, the rules of the Convention have to
be applied,57 and at least one court in an Article 92 CISG-reserving State has
done so.58
54
See CISG-AC Opinion no 3, Parol Evidence Rule, Plain Meaning Rule, Contrac-
tual Merger Clause and the CISG, 23 October 2004 (Rapporteur: Professor Richard
Hyland, Rutgers Law School, Camden, NJ, USA), available at: http://www.cisg.law.
pace.edu/cisg/CISG-AC-op3.html.
55
Mitchell Aircraft Spares v. European Aircraft Service supra fn 51 at 920-921.
56
Bergsten, E (2008) ‘Amending the Contract: Article 29 CISG’ in this book at p
54-55.
57
Brunner UN-Kaufrecht supra fn 18 at Art 92 para 3; Enderlein and Maskow
International Sales Law supra fn 9 at Art 92 no. 6; Lookofsky ‘Alive and Well’ supra
fn 44 at 294; Schlechtriem in Schlechtriem & Schwenzer Commentary supra fn 17
at Art 92 para 3.
58
Østre Landsret (Denmark), 23 April 1998 (Elinette Konfektion Trading ApS v.
Elodie S.A.), [1998] Ugeskrift for Retsvæsen 1092, available at: http://cisgw3.law.
pace.edu/cases/980423d1.html.
Article 95 CISG
The effect of a reservation under Article 95 CISG is to exclude the reserving
State’s duty under public international law to apply Article 1(1)(b) CISG.
The wording of Article 95 CISG, which – couched in classical public inter-
national law terms – entitles any State to declare ‘that it will not be bound
by subparagraph (1)(b) of Article 1 of this Convention’, makes amply clear
that the application of Article 1(1)(a) CISG is e contrario not affected by the
reservation: Reserving States continue to be bound by this provision.59 Apart
from this indication, Article 95 CISG provides little guidance to courts and
arbitrators when it comes to determining the reservation’s exact effect on the
Convention’s practical application, as it lacks a specific paragraph dealing
with this question comparable to the ones that Articles 92-94 CISG have
been endowed with. This difference in drafting style can be traced back to
Article 95 CISG’s legislative history: The reservation was only included into
the Convention due to a last-minute decision in the Plenary Conference,60
which meant that its wording did not undergo extensive scrutiny in a drafting
committee.
It is therefore not entirely surprising that different opinions have been
advocated when it comes to the question whether the courts in a reserving
State, even when – due to Article 95 CISG – not obliged to do so under
public international law, are still entitled to apply the Convention in cases
in which the prerequisites of Article 1(1)(a) CISG are not fulfilled. The do-
mestic law of one Article 95 CISG-reserving State – Singapore – contains a
specific rule through which the national legislator has explicitly excluded the
application of the CISG in all cases in which Article 1(1)(a) is inapplicable.61
But also in the United States, an Article 95 CISG reserving State that lacks a
specific domestic law dealing with this situation, at least two District Courts
59
U.S. District Court [New Jersey], 15 June 2005 (Valero Marketing v. Greeni),
373 F.Supp.2d 475, 482, available at: http://cisgw3.law.pace.edu/cases/050615u1.
html; Schlechtriem in Schlechtriem & Schwenzer Commentary supra fn 17 at Art 95
para 3.
60
See Official Records supra fn 36 p 229 et seq.
61
See Sub-section 3(2) of the Singapore Sale of Goods (United Nations Conven-
tion) Act: ‘Sub-paragraph (1)(b) of Article 1 of the Convention shall not have the
force of law in Singapore and accordingly the Convention will apply to contracts of
sale of goods only between those parties whose places of business are in different
states when the States are Contracting States’.
have taken the same position and held that the only circumstance in which
the CISG can be applied by a U.S. court is if all the parties to the contract are
from Contracting States.62 It is, however, important to note that there is noth-
ing in Article 95 CISG itself that would prevent a court in a reservation State
from applying the CISG in cases in which its private international law (eg by
honouring a choice of law clause forming part of the parties’ contract) points
to a law of a Contracting State: Article 95 CISG in itself merely excludes
the reserving State’s obligation to do so, but leaves the ensuing question of
how to determine the applicable law entirely to the domestic conflict of laws
rules.63 If these lead to the applicability of the Convention – as they well
may64 – this result is reached by way of the rules of private international law
only, without Article 1(1)(b) CISG being involved.65
Article 96 CISG
There is disagreement about the precise effect of a reservation under Ar-
ticle 96 CISG, which entitles a Contracting State to ‘make a declaration […]
that any provision […] of this Convention, that allows [… an …] indication
of intention to be made in any form other than in writing, does not apply
where any party has his place of business in that State’.66 One school of
thought believes that in every case in which one of the contracting parties
62
U.S. District Court [S.D. Florida], 22 November 2002 (Impuls v. Psion-Teklogix),
234 F.Supp.2d 1267, 1272, available at: http://cisgw3.law.pace.edu/cases/021122u1.
html; U.S. District Court [W.D. Washington], 17 July 2006 (Prime Start v. Maher
Forest Products), Internationales Handelsrecht (2006), 259 at 260, available at:
http://cisgw3.law.pace.edu/cases/060717u1.html.
63
Brunner UN-Kaufrecht supra fn 18 at Art 95 para 1.
64
Ferrari, F (2006) ‘Short notes on the impact of the Article 95 reservation on the
occasion of Prime Start Ltd. v. Maher Forest Products Ltd. et al., 17 July 2006 (IHR
2006, 259)’ Internationales Handelsrecht 248 at 250.
65
Bell, GF (2005) ‘Why Singapore should withdraw its reservation to the United
Nations Convention on Contracts for the International Sale of Goods (CISG)‘ (9)
Singapore Year Book of International Law 55 at 65.
66
See Honnold Uniform Law supra fn 5 at para 129: ‘The language of Articles 12
and 96 has led to uncertainty…’. It has to be stressed that the present question turns
on an interpretation of Article 96 CISG, rather than on Article 21 Vienna Convention
on the Law of Treaties, as the latter provision – if at all applicable – is residuary in
nature; but cf Basedow, J (2006) ‘Uniform Private Law Conventions and the Law of
Treaties’ Uniform Law Review 731 at 740-741.
involved has his place of business in an Article 96 CISG reservation State,

the writing requirements embedded in the law of that State apply.67 Accord-
ing to this approach, which has been justified with the acceptance by the
Convention of the need, felt by some States, for protection against claims
unsupported by a written agreement,68 Articles 12, 96 CISG would result in
the universal applicability of the reserving State’s national law on formal
requirements, whenever a party from this State is involved. A number of
Chinese69 and Russian70 arbitral tribunals (at least implicitly) seem to have
adopted this view, when they naturally applied the writing requirement in
67
Honnold Uniform Law supra fn 5 at para 129; Reinhart UN-Kaufrecht supra fn
11 at Art 12 para 3.
68
Honnold Uniform Law supra fn 5 at para 129.
69
See CIETAC Arbitral Award, 31 December 1997 (Lindane case), available at:
http://www.cisg.law.pace.edu/cisg/wais/db/cases2/971231c1.html: ‘when ratifying
the Convention, China denounced Articles 11 and 29 of the Convention on forma-
tion, modification and termination of the contract, that need not to be concluded
by means of writing. Therefore, the formation of the contract must be concluded
by means of writing’; CIETAC Arbitral Award, 17 October 1996 (Tinplate case),
available at: http://www.cisg.law.pace.edu/cisg/wais/db/cases2/961017c1.html:
‘China made a reservation when signing the CISG, requiring written format’; CI-
ETAC Arbitral Award, 6 September 1996 (Engines case), available at: http://www.
cisg.law.pace.edu/cisg/wais/db/cases2/960906c1.html; CIETAC Arbitral Award, 29
March 1999 (Flanges case), available at: http://www.cisg.law.pace.edu/cisg/wais/db/
cases2/990329c1.html: Form requirements in the ‘Law of the People’s Republic of
China on Economic Contracts Concerning Foreign Interests’ applied to CISG con-
tract between Seller from China and Buyer from the U.S. (the award does not indicate
why Chinese law was applied).
70
Tribunal of International Commercial Arbitration at the Russian Federation
Chamber of Commerce and Industry, 9 June 2004, No 125/2003, available at: http://
www.cisg.law.pace.edu/cisg/wais/db/cases2/040609r1.html, para 3.3: ‘the Tribunal
calls attention to the fact that, if one of the parties to an agreement is a Russian
company, according to art. 12 of the Vienna Convention of 1980, alterations of the
conditions of the agreement […] is admissible only in written form and cannot be
proved solely by the testimony of witnesses. This provision of the Vienna Convention
of 1980 takes into consideration peremptory norms of Russian civil legislation (art.
162 of Russian Civil Code), according to which non-observance of simple written
form of an external economic agreement entails its nullity’; Tribunal of International
Commercial Arbitration at the Russian Federation Chamber of Commerce and Indus-
try, 16 February 2004, No 107/2002, available at: http://www.cisg.law.pace.edu/cisg/
wais/db/cases2/040216r1.html, para 3.4.1. (But note that, in both awards, the tribunal
also declared Russian law to be applicable according to conflict of laws rules.)
Chinese respectively Russian law to CISG contracts. It has furthermore been

confirmed by a Russian court decision.71
The correct view, however, seems to be that the Article 96 CISG reser-
vation merely excludes the ipso iure applicability of Article 11 CSG (and
other provisions of the Convention affecting formal requirements), but says
nothing about the question which law will govern the formal validity of the
parties’ declarations: This matter is rather left for the private international
law rules of the forum to determine.72 Only this interpretation is in accord-
ance with both the wording of Articles 12, 96 CISG (which provide that the
CISG’s freedom of form provisions do ‘not apply’, rather than entitling a res-
ervation State to declare that his own form requirements do apply) and with
the Convention’s drafting history, during which the contrary construction
was discussed, but explicitly rejected.73 Courts from Austria, Belgium, Hun-
gary, the Netherlands and the Russian Federation (among them two Supreme
Courts) have taken the approach advocated here.74 In practical terms, this
means that the principle of freedom of form may still apply in accordance
with Article 11 CISG if the applicable conflict of law rules point to the law of
a CISG Contracting State which has not made a reservation under Article 96
CISG.75 Only if the forum’s conflict of laws rules call for the application of
71
Presidium of the Supreme Arbitration Court of the Russian Federation, 25
March 1997, Resolution No 4670/96, available at: http://cisgw3.law.pace.edu/
cases/970325r1.html: ‘Article 12 establishes that a contract of sale shall be made or
modified in writing.’
72
District Court Rotterdam (Netherlands), 12 July 2001 (Hispafruit BV v. Amuyen
S.A.), available at: http://www.cisg.law.pace.edu/cisg/wais/db/cases2/010712n1.html;
Lookofsky ‘The 1980 United Nations Convention’ supra fn 23 at para 332; Schlech-
triem in Schlechtriem & Schwenzer Commentary supra fn 17 at Art 96 para 3.
73
See Rajski in Bianca & Bonell Commentary supra fn 31 at Art 96 para 1.2; Sch-
lechtriem in Schlechtriem & Schwenzer Commentary supra fn 17 at Art 96 para 3.
74
See the following two footnotes.
75
Supreme Court (Netherlands), 7 November 1997 (J.T. Schuermans v. Boomsma
Distilleerderij/Wijnkoperij), Nederlands Internationaal Privaatrecht (1998) No 91,
available at: http://www.cisg.law.pace.edu/cisg/wais/db/cases2/971107n1.html: Ar-
ticle 11 CISG was first declared inapplicable to a Russian-Dutch contract because of
the Russian reservation under Article 96 CISG, but was then applied as part of Dutch
law which, being the law at the seller’s place of business, was deemed applicable by
virtue of the Dutch private international law rules; Supreme Court (Austria), 22 Octo-
ber 2001, available at: http://www.cisg.law.pace.edu/cisg/wais/db/cases2/011022a3.
html: despite Hungary’s declaration under Art. 96 CISG, a merely implicitly con-
a reservation State’s law, will the formal requirements of that law come into
play (and possibly result in the invalidity of oral communications made by
the parties).76
Effect as to Addressee: Which Countries’ Courts have to Observe the Res-

ervation?
Articles 92, 93, 94 CISG

The drafters of Articles 92 and 93 CISG described the effect of these reser-
vations comparatively clearly by stipulating that a reserving State ‘is not to
be considered a Contracting State’ (Article 92(2) CISG) resp. that a party’s
place of business ‘is considered not to be in a Contracting State, unless it is
in a territorial unit to which the Convention extends’ (Article 93(3) CISG):
The general language used makes clear that this effect has to be observed
by courts in any State (and not only reserving States), thus creating an erga
omnes effect.77 In this author’s opinion, the same must hold true for reserva-
tions under Article 94 CISG, their effect being that the Convention ‘is not to
cluded Austrian-Hungarian contract was held formally valid as the Austrian conflict
of law rules pointed to Austrian law; District Court Rotterdam (Netherlands), 12 July
2001 (Hispafruit BV v. Amuyen S.A.) supra fn 72; Metropolitan Court (Hungary), 24
March 1992 (Adamfi Video v. Alkotók Studiósa Kisszövetkezet), available at: http://
www.cisg.law.pace.edu/cisg/wais/db/cases2/920324h1.html: although Hungary has
declared a reservation under Article 96 CISG, an oral German-Hungarian contract
was held formally valid as the Hungarian conflict of laws rules pointed to German
law.
76
Presidium of the Supreme Arbitration Court of the Russian Federation, 20 March
2002, Resolution No 6134/01, available at: http://www.cisg.law.pace.edu/cisg/wais/
db/cases2/020320r1.html: Russian law applied by virtue of the Russian private in-
ternational law rules – oral modification of contract held invalid; Rechtbank van
Koophandel Hasselt (Belgium), 2 May 1995 (Vital Berry Marketing v. Dira-Frost),
Rechtskundig Weekblad (1995-96) no 40, available at: http://www.cisg.law.pace.edu/
cisg/wais/db/cases2/950502b1.html: Chilean law applied by virtue of the Belgian pri-
vate international law rules – oral modification of contract held invalid.
77
U.S. District Court [New Jersey], 15 June 2005 (Valero Marketing v. Greeni)
supra fn 59 (on Finland’s Article 92-reservation); Bridge ‘Uniform and Harmonized
Sales Law’ supra fn 27 at para 16.123; Torsello ‘Reservations’ supra fn 21 at 97-98;
contra De Ly, F (2005) ‘Sources of International Sales Law: An Eclectic Model’ (25)
Journal of Law and Commerce 1 at 9.
apply’ to contracts of sale or to their formation where the parties have their
places of business in reserving States (Article 94(1), (2) CISG).78
On a practical level, it is not entirely surprising to see that courts in
non-reserving States are generally more likely to ignore a reservation’s ef-
fect than courts in reserving States: While no cases have been reported in
which a court intentionally refused to observe a ‘foreign’ Article 92, 93 or 94
CISG-reservation, a number of courts have in the past overlooked reserva-
tions made by other Contracting States79 (despite the fact that these are listed
in every list of Contracting States). Much seems therefore to depend on how
well the parties are represented during the court proceedings, as a simple ref-
erence to the fact that a party has its place of business in a reserving State will
often suffice to bring the reservation’s effect to bear in a foreign court.80
Article 95 CISG
The interpretation of Article 95 CISG raises more difficult problems. After
the final text of the Convention had been adopted, it soon became obvious
that commentators were divided when it came to the question if an Article 95
CISG declaration is of any relevance in courts of a non-reserving State. The
ensuing academic discussion, which continues until today, centers around
the following question: Which law of sales does the court in a non-Article 95
CISG-reserving State have to apply to a contract of sale, when at least one of
the parties to that contract does not have its place of business in a Contract-
ing State (meaning that Article 1(1)(a) CISG cannot apply) and the forum’s
private international law rules (which the court then has to resort to under Ar-
78
Brunner UN-Kaufrecht supra fn 18 at Art 94 para 4; Magnus Kommentar supra
fn 40 at Art 94 para 7; Schlechtriem in Schlechtriem & Schwenzer Commentary supra
fn 17 at Art 94 para 9; for the opposing view see De Ly ‘Sources’ supra fn 77 at 10;
Ferrari, F in Schlechtriem, P and Schwenzer, I (eds) (2004) Kommentar zum Ein-
heitlichen UN-Kaufrecht – CISG – (4th ed) C.H. Beck at Art 94 para 3; Herber and
Czerwenka Internationales Kaufrecht supra fn 9 at Art 94 para 8.
79
German Courts of Appeals have acted particularly unfortunate in this respect; see
Oberlandesgericht Naumburg, supra fn 51 (Denmark’s Article 92 CISG-reservation
overlooked); Oberlandesgericht Frankfurt, supra fn 51 (Sweden’s Article 92 CISG-
reservation overlooked).
80
See Valero Marketing v. Greeni supra fn 59 at 480: ‘As Valero [U.S.] correctly
notes, the CISG doesn’t govern in this matter with respect to contract formation…’
(on Finland’s Article 92-reservation).
ticle 1(1)(b) CISG) point to the law of an Article 95 CISG-reserving State? A

significant number of authors believe that the reference of its conflict rules to
the law of a reserving State should lead the court to apply the same sales law
as the courts in the reserving State would, ie not the CISG.81 The Federal Re-
public of Germany has supported this approach by way of an interpretative
declaration (to be discussed in more detail below).82 In doing so, this school
of thought declares the Article 95 CISG reservation of a Contracting State to
be, at least to a certain extent, binding on other Contracting States.
It is submitted that this interpretation of Article 95 CISG is at odds both
with the wording of the provision and with a systematic comparison with Ar-
ticles 92-94 CISG: By allowing each Contracting State to declare that it will
not be bound by Article 1(1)(b) CISG, Article 95 CISG clearly specifies that
other Contracting States will continue to be bound by Article 1(1)(b) CISG
even when the sales contract at hand involves a party from a reserving State.
In striking contrast to Articles 92(2), 93(3) and 94(2) CISG, there is nothing
in Article 95 CISG to indicate that the reservation does have any effect on
the reserving State’s status as a Contracting State under Article 1(1) CISG.83
81
Bell ‘Why Singapore should withdraw‘ supra fn 65 at 64; Evans in Bianca &
Bonell Commentary supra fn 31 at Art 95 para 3.4; Kritzer, AH (1989) Guide to
Practical Applications of the United Nations Convention on Contracts for the Inter-
national Sale of Goods Kluwer at 78; Magnus Kommentar supra fn 40 at Art 95 para
6; Schlechtriem in Schlechtriem & Schwenzer Commentary supra fn 17 at Art 95
para 4: ‘normally not the CISG’; Schlechtriem, P (2005) ‘Requirements of Applica-
tion and Sphere of Applicability of the CISG’ (36) Victoria University of Wellington
Law Review 781 at 784; Ziegel, J (2005) ‘The Scope of the Convention: Reaching out
to Article One and Beyond’ (25) Journal of Law and Commerce 59 at 66.
82
It is interesting to note that in the only German court decision in which such a
situation has ever arisen, the Oberlandesgericht Düsseldorf (Germany), 2 June 1993,
Recht der Internationalen Wirtschaft (1993), 845, available at: http://cisgw3.law.
pace.edu/cases/930702g1.html adopted the opposite approach: The case involved a
contract between a seller from Indiana (USA) and a buyer from Germany, with the
contract having been concluded at a time when Germany had not yet ratified the
CISG (which meant that, according to Article 100 CISG, the Convention could not
be applied by virtue of Article 1(1)(a) CISG). The Court of Appeals instead looked to
Article 1(1)(b) CISG, ruled that the German rules of private international law lead to
the application of the law at the seller’s place of business (ie Indiana) and held that
the CISG applied.
83
For an author contrasting the wording of Articles 92 and 95 CISG, see Bell ‘Why
Singapore should withdraw‘ supra fn 65 at 63-64.
Article 1(1)(b) CISG, furthermore, explicitly instructs each court that ‘This
Convention applies […] when the rules of private international law lead to
the application of the law of a Contracting State’,84 and not that the law of
that Contracting State is to be applied. In conclusion, an Article 95 CISG
declaration does neither have an ‘erga omnes’ effect, nor is it to be taken into
account by courts in other States when applying Article 1(1)(b) CISG – the
relevance of the Article 95 CISG reservation is, in sum, limited exclusively
to the reserving State.85
Article 96 CISG
As the wording of Articles 12, 96 CISG (‘any provision […] does not apply’)
makes clear, a reservation declared in accordance with these provisions must
not only be observed by the courts in the reserving State, but also by courts
in other States which themselves might not have declared a similar reserva-
tion.86 Case law has confirmed this view.87
84
Emphasis added.
85
Oberlandesgericht Düsseldorf (Germany), 2 June 1993, supra fn 82; Bridge The
International Sale of Goods supra fn 26 at para 2.44; Enderlein and Maskow Interna-
tional Sales Law supra fn 9 at Art 95 no 1; Ferrari in Schlechtriem & Schwenzer Kom-
mentar supra fn 78 at Art 1 para 78; Ferrari ‘Short notes’ supra fn 64 at 251; Lando,
O (1987) ‘The 1985 Hague Convention on the Law Applicable to Sales’ (51) Rabels
Zeitschrift für ausländisches und internationales Privatrecht 60 at 82; Torsello ‘Res-
ervations’ supra fn 21 at 108-109.
86
Flechtner ‘The Several Texts of the CISG’ supra fn 18 at 197; but see Basedow
‘Uniform Private Law Conventions’ supra fn 66 at 740-741; Bridge ‘Uniform and
Harmonized Sales Law’ supra fn 27 at para 16.140; Torsello ‘Reservations’ supra fn
21 at 105.
87
Supreme Court (Netherlands), 7 November 1997, supra fn 75: Russian Arti-
cle 96-reservation observed by Dutch court; District Court Rotterdam (Netherlands),
12 July 2001 (Hispafruit BV v. Amuyen S.A.), supra fn 72: Argentinian Article 96-res-
ervation observed by Dutch court; COMPROMEX (Mexico), 29 April 1996, 17
Journal of Law and Commerce (1998) 427, http://www.cisg.law.pace.edu/cisg/wais/
db/cases2/960429m1.html: Argentinian Article 96-reservation observed by Mexican
government commission; Rechtbank van Koophandel Hasselt (Belgium), 2 May
1995, supra fn 76: Chilean Article 96-reservation observed by Belgian court.
Temporal Scope of Effect: When does the Reservation’s Effect Commence

and Lapse?
Generally speaking, a reservation under the Convention takes effect either

simultaneously with the entry into force of the Convention for the reserving
State or, if the reservation is only declared at a later stage (as possible under
the ‘at any time’ wording of Articles 94 and 96 CISG), on the first day of
the month following the expiration of six months after the date of its receipt
by the depositary (Article 97(3) sentences 1 and 2 CISG). The reservation
then remains effective until it is withdrawn in accordance with Article 97(4)
CISG.88
A more complicated regime applies to reservations made in accordance
with Article 94 CISG, as this reservation needs to be declared with respect
to one or more other States with whom the reserving State shares ‘closely
related legal rules’. When both States are Contracting States, the necessary
declarations must be either ‘jointly’ or ‘reciprocal’ (Article 94(1) CISG);89 if
only one of the States concerned has ratified the CISG, a declaration by the
Contracting State suffices (Article 94(2) CISG). The need for a concertated
action that is inherent in Article 94 CISG may result in an unexpected lapse
of a reservation’s effect, as the example of Iceland demonstrates: When it had
not yet ratified the CISG, Iceland had been the subject of Article 94(2)-reser-
vations by Denmark, Finland, Norway or Sweden, with whom Iceland shares
a closely related sales law. Upon its accession to the Convention,90 Iceland
failed to make any declarations in accordance with Article 94(3) CISG (a
requirement that probably had been overlooked by the responsible officials),
which caused the existing reservations to lose effect and the Convention to –
surprisingly – apply between Iceland and its Scandinavian neighbour States
from 1 June 2002 onwards. Only after Iceland had on 12 March 2003 effect-
88
Since the Convention entered into force, Canada withdrew its Article 95-reserva-
tion (with respect to the Canadian province of British Columbia) in 1992, and Estonia
its Article 96-reservation in 2004.
89
Article 97(3) sentence 3 CISG specifically regulates when ‘reciprocal’ declara-
tions take effect.
90
Iceland acceded to the CISG on 10 May 2001, and the Convention took effect for
Iceland on 1 June 2002 in accordance with Article 99(2) CISG.
ed a notification pursuant to Article 94(1) CISG,91 the Iceland-Scandinavian

trade was again exempt from the territorial scope of the Convention.
Finally, the temporal scope of a reservation’s effect may also be affected
in cases involving a succession of States. Related questions will be discussed
below in the section dealing with the succession of States and territories.92
Unclear Reservations (and How to Avoid Them)
Even when properly construed, any reservation to a uniform law convention

by definition reduces the degree of uniformity achieved and may render the
convention’s practical application more difficult. Article 98 CISG implic-
itly acknowledges this fact by providing that ‘No reservations are permitted
except those expressly authorized in this Convention’, thereby limiting the
States’ general ‘freedom of contract’ under public international law93 and, at
the same time, trying to reduce the number and content of reservations that
courts and arbitrators may have to deal with.
A particular difficulty (and one not directly addressed by Article 98
CISG) arises when a Contracting State makes an unclear reservation.
The Armenian Declaration
The Convention’s more recent history provides the following example. When
depositing its instrument of accession to the CISG with the Secretary-Gener-
al of the United Nations (Article 91(4) CISG) in 2006, Armenia initially filed
the following declaration:
‘Pursuant to Article 94, paragraph 1 and 2 of the Convention on
Contracts for the International Sale of Goods, the Republic of Ar-
menia declares that the Convention shall not apply to contracts of
91
Pursuant to Article 97(3) sentence 3 CISG, this declaration took effect on 1 Oc-
tober 2003.
92
See infra p 463.
93
Treaty clauses introducing limitations of this sort are acknowledged by Arti-
cle 19(b) Vienna Convention on the Law of Treaties.
sale where the parties have their places of business in the Republic
of Armenia.’
What seems clear from the wording of the declaration is that the Repub-
lic of Armenia attempted to formulate a ‘reservation’ in the sense defined by
Article 2(1)(d) Vienna Convention on the Law of Treaties, ie a ‘unilateral
statement […] made by a State […] whereby it purports to exclude or to
modify the legal effect of certain provisions of the treaty in their application
to that State’. Beyond this, Armenia’s declaration neither conformed to the
wording of Article 94 (1), (2) CISG nor the general spirit of a reservation
allowed under this provision, and its possible meaning remains uncertain. In
this particular case, the declaration’s lack of clarity remained without practi-
cal consequences, as the Republic of Armenia apparently withdrew its decla-
ration of accession before the CISG could enter into force for Armenia.94
The risk of making unclear reservations is, however, general in nature,
as demonstrated by the fact that the People’s Republic of China also made a
reservation under the CISG which lacks clarity:95 Although the wording of
China’s declaration resembles an Article 96 CISG reservation, its language
is not as encompassing because it only refers to Article 11 CISG, but neither
mentions Article 29 CISG nor Part II of the Convention.96
94
According to Article 2(1)(g) Vienna Convention on the Law of Treaties, a ‘party’
to a treaty is a State which has consented to be bound by the treaty and for which the
treaty is in force – at that point, and only at that point, is the State bound by the treaty
(Aust Modern Treaty Law supra fn 19 at p 75). Commentators convincingly argue
that there is no reason why a withdrawal of an instrument of accession which has
been deposited with the depositary of a multilateral treaty cannot be done, provided
that the withdrawal occurs before the instrument takes effect (see id at p 95-96). Ac-
cording to Article 99(2) CISG, the Convention only enters into force in respect of an
acceding State on the first day of the month following the expiration of twelve months
after the date of the deposit of its instrument of accession – thus, the withdrawal by
Armenia seems to have been effectuated in a timely manner. At the time of writing,
the Republic of Armenia is not listed as a Contracting State to the CISG.
95
Declaration made by the People’s Republic of China upon approval of the Con-
vention on 11 December 1986.
96
The declaration’s wording is (partially) reproduced infra in the next paragraph.
How to Avoid Unclear Reservations
Against this background, it constitutes a desirable goal to develop procedures

designed to avoid potential unclarities. As a starting point, two steps come
to mind: First, is seems advisable for the States to keep the content of their
reservations to the necessary minimum, and to refrain from repeating the text
of reservation provisions from which, according to Article 98 CISG, they are
not free to derogate. A reservation reading ‘State X makes a declaration in
accordance with Article 96’ is thus preferable to ‘State X does not consider
itself to be bound by Article 11 as well as the provisions in the Convention
relating to the content of Article 11’:97 Numbers are, in short, preferable to
words. As a second measure, UNCITRAL (or a similar institution) could
make model reservations available to the Contracting States, enabling them
to use model wordings developed by experts when formulating a reservation
under a uniform law convention.
Interpretation of Unclear Reservations by the Courts
In cases in which an unclear reservation has been made, it will be up to the

courts and arbitrators to interpret the respective reservation in order to de-
termine its effect upon the Convention’s application to the case at hand. In
doing so, it is submitted that Article 31(1) Vienna Convention on the Law
of Treaties in conjunction with Article 98 CISG provide an important inter-
pretative guideline: When read together, these two treaty provisions indicate
that all reservations should be interpreted in good faith in accordance with
the ordinary meaning to be given to the terms used therein and thus, in the
light of the object and purpose of Article 98 CISG, should be construed as
invoking Articles 92-96 CISG (only) in accordance with the respective reser-
vation’s prerequisites and effect as laid down in these Final Provisions.
In accordance with this interpretative guideline, the People’s Republic
of China’s declaration pertaining to form requirements should be read as not
only covering Article 11 CISG, but also the Convention’s other provisions
allowing for an oral or implicit conclusion, modification or termination of
97
Cf the declaration by the People’s Republic of China referred to supra.
CISG contracts, as this reading conforms to the reservation’s effect as laid

down in Article 96 CISG.98
‘Interpretative Declarations’
Occasionally, Contracting States attach to their instruments of accession

statements which, on their face, do not purport to ‘exclude or modify the le-
gal effect’ of the CISG for the State making them (and are therefore not to be
regarded as ‘reservations’ in the sense used by Articles 2(1)(d), 19-21 Vienna
Convention on the Law of Treaties), but rather seek to provide an interpreta-
tion of certain provisions of the Convention. Declarations of this sort, which
are commonly referred to as ‘interpretative declarations’,99 pose particular
problems when made under a uniform law convention like the CISG.
Examples of Declarations ‘Interpreting’ the CISG
The Hungarian Declaration on Article 90 CISG
When Hungary on 16 June 1983 deposited its instrument of ratification with

the depository of the CISG, being among the first States to do so, the instru-
ment contained the following declaration:
‘[The Hungarian People’s Republic] considers the General Condi-
tions of Delivery of Goods between Organizations of the Member
Countries of the Council for Mutual Economic Assistance/GCD
CMEA, 1968/1975, version of 1979/ to be subject to the provisions
of article 90 of the Convention’.
One can only speculate what prompted the Hungarian Government
to make this explanatory statement addressing the (today largely obscure)
‘GCD CMEA’, a comprehensive set of rules governing the intra-COMECON
98
See also Wang and Andersen ‘The Chinese Declaration’ supra fn 46 at 146: ‘This
difference in declaration language would seem to be without significance regarding
the effect of the declaration’; but see Bailey ‘Facing the Truth’ supra fn 25 at 312.
99
McRae, DM (1978) ‘The Legal Effect of Interpretative Declarations’ (49) British
Yearbook of International Law 155.
trade that Article 90 CISG had specifically been drafted to cover.100 A pos-
sible reason might have been that Professor Gyula Eörsi, who had acted as a
member of the Hungarian delegation to the Vienna Diplomatic Conference
and, enjoying an excellent reputation and high respect within the interna-
tional academic community, had also served as the President of the Confer-
ence, had written in a 1983 article that ‘the trade law among COMECON
countries inter se is unified and will remain unaffected by virtue of Art. 94 of
the Convention’.101 This may have alerted Hungarian officials to the fact that
the most prominent Hungarian expert on the CISG apparently did not concur
with the view that saw the GDC CMEA covered by Article 90 CISG.
The interpretation of Article 90 CISG favoured by Hungary in its inter-
pretative declaration turned out to be in conformity with the view adopted
by the majority of international commentators102 and by a number of arbitral
tribunals, which considered the (closely related) General Principles of De-
liveries between the Soviet Union and the Peoples’ Republic of China to be
subject to Article 90 CISG.103 As far as can be ascertained, no Hungarian
court ever addressed the applicability of Article 90 CISG to the GDC CMEA,
nor is there any indication that courts in other countries have taken note of
Hungary’s interpretative declaration.
100
See Schroeter UN-Kaufrecht und Europäisches Gemeinschaftsrecht supra fn
8 at § 9 paras 12 et seq (with extensive references to Article 90 CISG’s legislative
history).
101
Eörsi, G (1983) ‘A Propos the 1980 Vienna Convention on Contracts for the In-
ternational Sale of Goods’ (31) American Journal of Comparative Law 333 at 342.
102
See Enderlein and Maskow International Sales Law supra fn 9 at Art 90 no 2;
Heuzé, V (2000) La vente internationale de marchandises: Droit uniforme L.G.D.J.
no 112; Kritzer Guide to Practical Applications supra fn 81 at 551; Magnus Kom-
mentar supra fn 40 at Art 90 para 9.
103
Tribunal of International Commercial Arbitration at the Russian Federation
Chamber of Commerce and Industry, 14 April 1998, No. 47/1997, available at: http://
www.cisg.law.pace.edu/cisg/wais/db/cases2/980414r1.html, para 3.1; Tribunal of In-
ternational Commercial Arbitration at the Russian Federation Chamber of Commerce
and Industry, 2 October 1998, No. 113/1997, available at: http://www.cisg.law.pace.
edu/cisg/wais/db/cases2/981002r1.html, para 3.1; Tribunal of International Com-
mercial Arbitration at the Russian Federation Chamber of Commerce and Industry,
22 March 2002, No. 225/2000, available at: http://www.cisg.law.pace.edu/cisg/wais/
db/cases2/020322r1.html, paras 1.2, 3.3.
The German Declaration on Articles 1(1)(b) and 95 CISG
The Federal Republic of Germany made the following declaration when ac-
ceding to the Convention:
‘The Government of the Federal Republic of Germany holds the
view that Parties to the Convention that have made a declaration
under article 95 of the Convention are not considered Contracting
States within the meaning of subparagraph (b) of article 1 of the
Convention. Accordingly, there is no obligation to apply – and the
Federal Republic of Germany assumes no obligation to apply – this
provision when the rules of private international law lead to the ap-
plication of the law of a Party that has made a declaration to the
effect that it will not be bound by subparagraph (1) (b) of article 1 of
the Convention. Subject to this observation the Government of the
Federal Republic of Germany makes no declaration under article 95
of the Convention.’
As is clear from its last sentence, the statement cited was neither meant
to constitute a reservation in accordance with Article 95 CISG nor a ‘partial’
reservation,104 but an interpretative declaration.105 In its declaration, the Gov-
ernment of the Federal Republic of Germany ‘interpreted’ both Articles 1(1)
(b) and 95 CISG in a particular manner and thus chose to take a position in a
dispute which – as has been noted above – continues until today. In this con-
text, it is not without interest to remember that the German delegation to the
Vienna Diplomatic Conference had vigorously criticized both Articles 1(1)
(b) and 95 CISG, but had eventually failed in its attempts to have the provi-
sions removed from the Convention’s text.106
104
But see Reinhart UN-Kaufrecht supra fn 11 at Art 2 VertragsG para 1; Lüderitz,
A and Fenge, A in Soergel, HT (2000) Bürgerliches Gesetzbuch, Vol. 13: Schuldrecht-
liche Nebengesetze – CISG (13th ed) Kohlhammer at Art 1 para 16.
105
Ferrari in Schlechtriem & Schwenzer Kommentar supra fn 78 at Art 1 para 79;
Herber and Czerwenka Internationales Kaufrecht supra fn 9 at Art 1 para 19; Magnus
Kommentar supra fn 40 at Art 1 para 112.
106
See Delegate Herber (Federal Republic of Germany) in Official Records supra
fn 36 p 236-237.
Legal Significance of Interpretative Declarations
The CISG’s Final Provisions do not address interpretative declarations. Their

legal significance is therefore subject to the applicable standards of public
international law.107 Although a clear view or practice in this matter has not
emerged,108 it is beyond dispute that an interpretative declaration may not be
made where such a declaration is prohibited by the treaty it is relating to. This
is precisely the situation under the CISG: While interpretative declarations
are not contrary to Article 98 CISG,109 it is submitted that they are incompat-
ible with Article 7(1) CISG,110 as this provision declares an internationally
uniform interpretation to be the CISG’s decisive goal and, even more impor-
tant, delegates the task of developing the Convention’s interpretation to the
courts and not the government or parliament of the individual Contracting
States.111 Article 7(1) CISG accordingly prohibits Contracting States from
influencing the Convention’s interpretation through interpretative declara-
tions. Any interpretative declaration that is made nevertheless must therefore
remain without legal effect.112
One might add that, under public international law, this result is not
changed by the fact that the UN Secretary-General as the depositary of the
Convention (Article 89 CISG) accepted the declarations by Hungary and
Germany for deposit and communicated their text to all Contracting States:
Article 77 Vienna Convention on the Law of Treaties113 makes it clear that
the depositary’s functions in this respect are limited to receiving those com-
munications and informing other States thereof, without granting the deposi-
107
para 2.
108
McRae ‘Interpretative Declarations’ supra fn 99 at 160.
109
But see Bridge The International Sale of Goods supra fn 26 at para 2.44 fn
171.
110
Ferrari ‘Short notes’ supra fn 64 at 251; Torsello ‘Reservations’ supra fn 21 at
117 (both on Germany’s interpretative declaration).
111
See Basedow ‘Uniform Private Law Conventions’ supra fn 66 at 735: ‘With the
exception of reservations permitted in the convention, the binding treaty only leaves
national legislators a choice between “yes” and “no”.’
112
See Torsello ‘Reservations’ supra fn 21 at 117.
113
Article 77 Vienna Convention on the Law of Treaties governs the depositary’s
functions under the CISG; see Schlechtriem in Schlechtriem & Schwenzer Commen-
tary supra fn 17 at Art 89 para 2.
tary any power to adjudicate on the declaration’s validity or its legal effect.114
In addition, the fact that all other Contracting States remained silent in the
face of the Hungarian and the German interpretative declarations is simi-
larly without relevance: Article 20(5) Convention on the Law of Treaties is
inapplicable as it is only concerned with reservations, and there is no duty
to respond to interpretative declarations under general international law.115
Inaction can accordingly not be treated as aquiescence, and does not cure the
declarations’ legal insignificance.
Interpretative Declarations and Interpretative Domestic Legislation
Finally, some Contracting States have enacted domestic laws which purport
to interpret certain provisions of the CISG. Legislation of this kind can eg
be found in Canada,116 Germany117 and Norway.118 Unlike the ‘interpretative
declarations’ discussed above, these cases of interpretative domestic legisla-
tion have not been communicated to the depositary of the Convention, and
their content has therefore not even been brought to the other Contracting
States’ attention. According to the applicable rules of public international
law, interpretative domestic legislation is of no legal significance to other
Contracting States and their courts, which are therefore not only entitled to
disregard its content, but are even obliged to do so because of their obligation
to apply the Convention’s rules in accordance with Article 7(1) CISG.119
As Article 7(1) CISG has to be observed by every Contracting State,
those Contracting States which have prescribed a certain interpretation by
way of an interpretative domestic legislation are arguably acting in violation
of public international law. This is certainly the case if the content of the
interpretative domestic legislation departs from the prevailing international
114
115
116
Most Canadian provinces have enacted laws interpreting Article 6 CISG; see
Ziegel, J (1991) ‘Canada Prepares to Adopt the International Sales Convention’ (18)
Canadian Business Law Journal 1 at 3.
117
Article 2 of the German Vertragsgesetz, which repeats the content of Germany’s
‘interpretative declaration’ pertaining to Articles 1(1)(b) and 95 CISG (see above).
118
See Hagstrøm, V (2006) ‘CISG – Implementation in Norway, an approach not
advisable’ Internationales Handelsrecht 246 at 247-248.
119
See Ziegel ‘Canada Prepares to Adopt’ supra fn 116 at 11.
interpretation of the CISG provisions concerned, given that Article 27 Vi-

enna Convention on the Law of Treaties explictly provides that ‘[a] party
may not invoke the provisions of its internal law as justification for its failure
to perform a treaty’.120 But Article 7(1) CISG, it is submitted, should be
read as going even further: Any domestic act which requires courts to fol-
low a national legislator’s view when interpreting the Convention should be
regarded as a violation of the Contracting State’s obligations arising from the
Convention, even if the CISG’s interpretation laid down in the interpretative
domestic legislation should be in accordance with the internationally prevail-
ing view.121
Succession of States and The cisg
The Succession of States122 is a phenomenon that has gained some impor-

tance for the Convention’s applicability, in particular through its impact upon
certain territories’ status as ‘Contracting States’ under the CISG. Since the
CISG’s Final Provisions provide no specific rules addressing these develop-
ments, recourse has to be had to rules of customary public international law.
The definition of those rules is, however, unfortunately difficult,123 as only
some of the provisions in the Vienna Convention on Succession of States in
120
This raises the following question: Are the courts in States which have enacted
an interpretative domestic legislation free to depart from the domestic law in favour
of an international interpretative approach? The matter has to be decided in accor-
dance with the respective constitutional law, and cannot be discussed here. Suffice it
to say that at least one commentator has argued that German courts are not bound by
domestic interpretative law in this situation, but should follow Article 7(1) CISG; see
Magnus Kommentar supra fn 40 at Art 1 para 111.
121
Cf Hagstrøm ‘CISG – Implementation in Norway’ supra fn 118 at 247.
122
See Brownlie, I (1998) Principles of Public International Law (5th ed) Oxford
University Press at p 650: ‘It is of great importance to note that the phrase “state suc-
cession” is employed to describe an area, or a source of problems: the term does not
connote any principle or presumption that a transmission or succession of legal rights
and duties occurs.’
123
Cf Aust Modern Treaty Law supra fn 19 at p 307: ‘It is [...] a particularly uncer-
tain and controversial area of international law’; Brownlie Principles of Public Inter-
national Law supra fn 122 at p 650; Gamarra, Y (2000) ‘Current Questions of State
Succession Relating to Multilateral Treaties’ in Eisemann, PM and Koskenniemi, M
(eds) State Succession: Codification Tested against the Facts Martinus Nijhoff p 387
at 388.
respect of Treaties of 23 August 1978 are regarded as codifying customary

international law.124
Uniform Law in a World of Shifting Borders
Soon after the CISG had entered into force on 1 January 1988, the world en-
tered a new era that was marked by significant changes on the global political
landscape: Within a couple of years, a number of States that had participated
in the Vienna Diplomatic Conference of 1980 and had subsequently ratified
the Sales Convention would cease to exist, new States would be established
in their place and again others would encounter changes in their borders.
The first change in the fledgling CISG landscape was caused by the Ger-
man reunification on 3 October 1990, when the German Democratic Repub-
lic (then already a CISG Contracting State) acceeded to the Federal Republic
of Germany (at that stage still a non-Contracting State).125 In 1991, the Union
of Soviet Socialist Republics (USSR) – for which the CISG entered into
force on 1 September that year – began to dissolve, and a significant number
of independent States emerged, which among them adopted a variety of posi-
tions towards the Convention (see below). The Socialist Federal Republic of
Yugoslavia, which had been a CISG Contracting State since 1 January 1988,
similarly underwent significant changes, when from 1991 onwards most of
its republics declared their independence.
Effective 1 January 1993, another Contracting State – the Czechoslovak
Socialist Republic (CSSR)126 – dissolved and left the Czech Republic and
the Slovak Republic as its successors. On 1 July 1997, the territory of Hong
124
See Aust Modern Treaty Law supra fn 19 at p 306; Gamarra ‘Current Ques-
tions’ supra fn 123 at 434; Williams, PR (1994) ‘The Treaty Obligations of the Suc-
cessor States of the former Soviet Union, Yugoslavia and Czechoslovakia: Do They
Continue in Force?’ (23) Denver Journal of International Law and Policy 1 at 8.
The practice of the Secretary-General of the United Nations, however, is based on
the assumption that the Vienna Convention essentially codifies customary interna-
tional law; cf Zimmermann, A (2000) Staatennachfolge in völkerrechtliche Verträge
Springer at p 755-757.
125
The CISG entered into force for the Federal Republic of Germany on 1 January
1991.
126
The CISG had entered into force for the CSSR on 1 April 1991.
Kong – which since 1842 had been a British crown colony, and therefore part
of a Non-Contracting State – was restored to the People’s Republic of China
(a CISG Contracting State), and on 20 December 1999 a similar develop-
ment finally took place with respect to Macao, which for centuries had been
administered by Portugal (another non-Contracting State).127
Effect of State successions upon the Status as a CISG ‘Contracting

State’
In determining the legal effect that a State succession (as the ones described
above) may have upon the affected territories’ status as a CISG ‘Contracting
State’, a number of different scenarios need to be distinguished:
Dissolution and Separation of States
When a part or parts of the territory of a Contracting State for which the
CISG is in force separate to form one or more States (as in case of the USSR,
the former Yugoslavia and the CSSR), two possible, but mutually exclusive
principles may apply: According to the ‘continuity principle’, the Conven-
tion would automatically continue in force in respect of each successor State
so formed. Articles 34(1)(a), 35 Vienna Convention on Succession of States
in respect of Treaties are based on the assumption that this ‘continuity princi-
ple’ constitutes the general rule. According to the ‘clean-slate principle’, on
the contrary, the Convention ratified by the predecessor State would only be-
come binding upon the successor State once the latter has filed a formal no-
tification of succession. Although this approach has been codified in Articles
17-23 Vienna Convention on Succession of States in respect of Treaties for
‘newly independent States’ (ie former colonies and dependent territories128)
only, it is widely assumed that the ‘clean-slate principle’ also applies to cer-
tain other cases,129 in particular to States which came into existence through
127
See Schroeter ‘The Status of Hong Kong and Macao’ supra fn 15 at 312.
128
See the definition of ‘newly independent States’ in Article 2(1)(f) Vienna Con-
vention on Succession of States in respect of Treaties.
129
Brownlie Principles of Public International Law supra fn 122 at p 663-664;
Gamarra ‘Current Questions’ supra fn 123 at 393; Zimmermann Staatennachfolge
supra fn 124 at p 826.
separation from a predecessor State which continues to exist (‘separation’ or

‘cession’ as opposed to complete ‘dismembration’ or ‘dissolution’).130 When
applied to rights and obligations arising from the CISG, the principles just
mentioned lead to the following results:
No practical difficulties arise whenever a successor State’s status as a
Contracting State is being supported through a notification of succession
which the successor State files with the treaty’s depositary. With respect to
the CISG, this step was taken by the Russian Federation (successor to the
USSR, and continuing its international legal personality), Belarus (successor
to the Byelorussian SSR), the Ukraine (successor to the Ukrainian SSR), the
Czech Republic and the Slovak Republic (successors to the CSSR), Bos-
nia and Herzegovina, Croatia, Slovenia, and Macedonia (adopting the name
‘The former Yugoslav Republic of Macedonia’) (successors to the Socialist
Federal Republic of Yugoslavia, the so-called ‘former Yugoslavia’), as well
as the Republic of Serbia and the Republic of Montenegro (successors to
Serbia and Montenegro, a State which – under the then name of ‘Federal
Republic of Yugoslavia’ – had also been a successor to the ‘former Yugo-
slavia’131). While the legal certainty created by the notification procedure is
only too welcome, it is worth remembering that, from a dogmatic point of
view, the Contracting State status of the above mentioned States arguably
arose ipso iure because of the ‘continuity principle’: Their notifications of
succession were therefore purely declaratory in nature,132 merely confirming
a situation which, by international law, already existed.133
130
Shaw, MN (2003) International Law (5th ed) Cambridge University Press at p
879; Zimmermann Staatennachfolge supra fn 124 at p 826; but see Brownlie Princi-
ples of Public International Law supra fn 122 at p 663 who even states that the ‘clean
slate principle’ constitutes the general rule.
131
The Federal Republic of Yugoslavia had been created in 1992 and claimed to
continue the international legal personality of the former Yugoslavia, to which the
former republics now independent – see above – objected.
132
Note that, according to Article 9 Vienna Convention on Succession of States in
respect of Treaties, a unilateral notification of succession by a successor State alone
does not suffice in order to transfer the rights and duties under a treaty.
133
A difference between a notification of succession establishing the Contracting
State status and a notification (unnecessarily) conforming it would only arise as far
as the period between the date of succession and the notification of succession is
concerned: However, this difference is being removed whenever a notification of
succession declares the Convention retroactively applicable.
Another group of successor States refrained from filing a notice of suc-

cession, and instead selected to ratify the CISG themselves. This approach
was adopted by a significant number of States whose territories previously
formed part of the USSR, namely Estonia, Georgia, Kyrgyzstan, Latvia,
Lithuania, Moldova and Uzbekistan.134 It is in accordance with what seems
to be the prevailing view with respect to the legal situation of the former So-
viet republics, which – apart from the Russian Federation, which continued
the USSR (Article 35 Vienna Convention on Succession of States in respect
of Treaties) – are considered to have inhereted a ‘clean slate’.135 Their posi-
tion as a CISG Contracting State was therefore established by acceding to the
Convention de novo in their own name.
Finally, a number of States whose territory previously formed part of the
USSR – Armenia, Azerbaijan, Kazakhstan, Tjikistan and Turkmenistan136 –
neither deposited an instrument of accession with the depositary of the CISG
in accordance with Article 91(3), (4) CISG, nor made a notification of suc-
cession establishing their succession to the USSR’s rights and obligations
arising from the CISG. These former Soviet republics – who, in short, sim-
ply remained silent – can therefore currently not be considered ‘Contracting
States’ under the CISG, as the ‘clean slate principle’ governing their position
removed the legal nexus between the Convention and their respective ter-
ritories.137
Territory of a State Becoming Part of Another State
A somewhat different development takes place when a certain territory

(within which sellers or buyers may reside) and which, under public inter-
134
As mentioned above, Armenia also filed an instrument of accession in 2006, but
apparently withdrew it.
135
Brownlie Principles of Public International Law supra fn 122 at p 664; Gama-
rra ‘Current Questions’ supra fn 123 at 419; Korman, ST (1992) ‘The 1978 Vienna
Convention on Succession of States in respect of Treaties: An Inadequate Response
to Issues of State Succession’ (16) Suffolk Transnational Law Review 174 at 188-189
(on the Baltic States).
136
For background information on these countries’ position towards the CISG, see
Knieper, R (2005) ‘Celebrating Success by Accession to CISG’ (25) Journal of Law
and Commerce 477, at 479-480.
137
See supra fn 135.
national law, is (part of) one State, now becomes part of another (already
existing) State. A change of this kind can affect the applicability of the CISG
in two different constellations, both of which have already occurred in the
history of the Convention:
The first development to be considered involves a Contracting State (or
part thereof) becoming part of a Non-Contracting State. This happened when
the German Democratic Republic, which had been a CISG Contracting State
since 1 March 1990, effective 3 October 1990 acceded to the Federal Re-
public of Germany (at that time still a Non-Contracting State, as the Con-
vention only entered into force for the Federal Republic of Germany on 1
January 1991). Generally speaking, upon becoming part of the territory of
another State, treaties of the predecessor State cease to be in force in re-
spect of the territory to which the succession of States relates, as provided
by Article 15(a) Vienna Convention on Succession of States in respect of
Treaties. As the German reunification was marked by a number of unique
circumstances,138 commentators are divided if this solution also applies to
Eastern Germany’s status under the CISG between 3 October 1990 and 1
January 1991.139 Suffice it to say that the point has not gained any practical
relevance, as no international sales contract concluded by an Eastern German
party during this brief period has been reported that would have raised the
question of the Convention’s applicability.
The reverse situation occured when on 1 July 1997 the territory of Hong
Kong – which was at that point a British crown colony, and therefore part
of a CISG non-Contracting State – was restored to the People’s Republic of
China (a CISG Contracting State), and when on 20 December 1999 a simi-
lar development took place with respect to Macao, which for centuries had
been administered by Portugal (another non-Contracting State). As I have
argued in more detail elsewhere,140 the transfer of Hong Kong and Macao
to the People’s Republic of China resulted in those two territories becom-
138
See Gamarra ‘Current Questions’ supra fn 123 at 402 et seq.
139
See Magnus Kommentar supra fn 40 at Einl zum CISG paras 15-17 (listing
numerous references).
140
Schroeter ‘The Status of Hong Kong and Macao’ supra fn 15 at 320-326;
Schroeter, UG (2004) ‘Die Vertragsstaateneigenschaft Hongkongs und Macaus unter
dem UN-Kaufrecht’ Internationales Handelsrecht 7.
ing part of a Contracting State from the date of the respective ‘handover’,141
an assessment which is in conformity with the ‘moving-boundary principle’
recognized as customary international law142 as well as the fact that China
has not made a declaration under Article 93 CISG, by way of which it could
have easily exempted its new ‘Special Administrative Regions’ from the ter-
ritorial scope of the Convention. Courts143 as well as commentators144 have
since adopted the position advocated here.
Successions and Reservations
Neither the Final Provisions of the CISG nor the Vienna Convention on Suc-
cession of States in respect of Treaties contain a specific provision which
governs the legal destiny of reservations declared by a predecessor State.
Under the CISG, this question has arisen with respect to the CSSR’s reserva-
tion under Article 95 CISG, which was neither confirmed nor withdrawn in
the notifications of succession filed by the Czech Republic and the Slovak
Republic.145 Article 20(1) Vienna Convention on Succession of States in re-
spect of Treaties (the scope of which is limited to newly independent States)
141
For Hong Kong: 1 July 1997; for Macao: 20 December 1999.
142
Cf Aust Modern Treaty Law supra fn 19 at p 307.
143
Oberlandesgericht Hamm (Germany), 12 November 2001, OLG-Report Hamm
(2002), 185, available at: http://cisgw3.law.pace.edu/cases/011112g1.html: Con-
vention applied to contract between a German buyer and a seller from Hong Kong
according to Article 1(1)(a) CISG, as ‘[b]oth Germany and China are Contracting
States to the CISG [and] the parties have their places of business in the States men-
tioned above’; Rechtbank van Koophandel Turnhout (Belgium), 18 January 2001
(Index Syndicate Ltd. v. NV Carta Mundi), available at: http://cisgw3.law.pace.edu/
cases/010118b1.html: ‘both Belgium and the People’s Republic of China, of which
Hong Kong again forms part, have ratified the Convention.’
144
Magnus Kommentar supra fn 40 at p 30; McNamara, T (2003) ‘U.N. Sale of
Goods Convention: Finally Coming of Age?’ (32) Colorado Lawyer 11 at 13; Posch,
W in Schwimann, M (ed) (2006) ABGB Praxiskommentar, Vol 4 (3rd ed) LexisNexis
at Art 93 para 4; Schlechtriem in Schlechtriem & Schwenzer Commentary supra fn
17 at Art 1 para 9; Shen, J (1998) ‘Cross-Strait Trade and Investment and the Role of
Hong Kong’ (16) Wisconsin International Law Journal 661 at 668; but see Busch-
baum, M (2004) ‘Anwendbarkeit des UN-Kaufrechts im Verhältnis zu Hongkong’
Praxis des Internationalen Privat- und Verfahrensrechts 546.
145
Cf De Ly ‘Sources’ supra fn 77 at 10: ‘There is some doubt whether the Czecho-
slovakian reservation survived that country’s split.’
provides that the successor State shall be considered as maintaining any res-
ervation which was applicable at the date of the succession of States, unless
it expressly states otherwise. Although Articles 30-38 Vienna Convention
lack a similar provision, it is submitted that the same must apply to other
cases of State succession, as the ‘continuity principle’ is based on the very
idea that the predecessor’s scope of treaty obligations survives the succes-
sion unchanged.146 As a result, the reservation according to Article 95 CISG
is still effective for the Czech and the Slovac Republic.147
The Convention’s Relationship with other

international INSTRUMents: ArticleS 90, 94 CISG
and European Community Law
A most difficult question relating to the position of the CISG within the in-
ternational legal order is raised by the developing ‘regionalisation’ of inter-
national business law:148 Which rules should govern the relationship between
the Convention on one hand and instruments adopted by regional communi-
ties of States on the other hand in case these instruments apply to interna-
tional contracts subject to the CISG, but provide for solutions that differ
from those used in the Convention? Such a ‘conflict of norms’ between two
international instruments is currently most likely to occur between the CISG
and instruments adopted by the European Community, as the vast majority
of its Member States have also ratified the CISG. The European Community
legislation in force already contains a number of provisions not in harmony
with the Convention, amongst others in the Consumer Sales Directive,149
146
Zimmermann Staatennachfolge supra fn 124 at p 755-757. But see Brownlie
Principles of Public International Law supra fn 122 at p 668, who characterizes the
issue as ‘yet unsettled’.
147
Magnus Kommentar supra fn 40 at Art 95 para 4; Schlechtriem in Schlechtriem
& Schwenzer Commentary supra fn 17 at Art 1 para 41; but see Enderlein, F (1997)
‘Vienna Convention and Eastern European Lawyers’ IBA International Sales Quar-
terly 12.
148
De Ly ‘Sources’ supra fn 77 at 3; see Schroeter UN-Kaufrecht und Europäisches
Gemeinschaftsrecht supra fn 8 at §§ 6-15.
149
Directive 1999/44/EC of the European Parliament and of the Council of 25 May
1999 on certain aspects of the sale of consumer goods and associated guarantees;
see Schroeter UN-Kaufrecht und Europäisches Gemeinschaftsrecht supra fn 8 at § 6
paras 188-290, § 15 paras 89-120.
the Distance Selling Directive,150 the Directive on Late Payments151 and the
Brussels Regulation.152 In the future, comparable conflicts also seem possible
between the Convention and Actes Uniformes adopted by the Organisation
for the Harmonisation of Business Law in Africa (better known under its
French acronym ‘OHADA’)153 or Decisiones adopted by the Mercado Co-
mun del Sur (MERCOSUR).154
The CISG’s Part IV contains two provisions designed to govern the
Convention’s relationship with concurrent international instruments (‘Rela-
tionsnormen’155), namely Article 90 CISG and Article 94 CISG. They differ
both in their scope of application and in their legal effect: While Article 90
CISG merely applies to ‘international agreements’ concluded by Contracting
States, but accords prevalence to any of those agreements without requiring
any specific action by a State involved, Article 94 CISG accommodates any
instrument that introduces the same or closely related legal rules into the
participating States’ legal systems, but does require explicit declarations of
150
Directive 97/7/EC of the European Parliament and of the Council of 20 May
1997 on the protection of consumers in respect of distance contracts; see Schroeter
UN-Kaufrecht und Europäisches Gemeinschaftsrecht supra fn 8 at § 6 paras 126-187,
§ 15 paras 76-88.
151
Directive 2000/35/EC of the European Parliament and of the Council of 29
June 2000 on combating late payment in commercial transactions; see Schroeter UN-
Kaufrecht und Europäisches Gemeinschaftsrecht supra fn 8 at § 6 paras 337-399,
§ 15 paras 121-166.
152
Council Regulation (EC) No 44/2001 of 22 December 2000 on jurisdiction and
the recognition and enforcement of judgments in civil and commercial matters; see
Schroeter UN-Kaufrecht und Europäisches Gemeinschaftsrecht supra fn 8 at § 6 pa-
ras 16-34, § 15 paras 7-23.
153
While the Acte uniforme sur le droit commercial général the OHADA adopted
on 17 April 1997 is largely based on the CISG, it does contain a number of poten-
tially conflicting provisions; see Schroeter, UG (2001) ‘Das einheitliche Kaufrecht
der OHADA-Staaten’ Law in Africa 163 at 167. That a conflict with the CISG must
currently seem unlikely is due to the fact that among the OHADA States only Gabon
and Guinea have adopted the Convention.
154
On conflicts between such acts and international conventions in general see
Basedow, J (2003) ‘Worldwide Harmonisation of Private Law and Regional Eco-
nomic Integration – General Report’ Uniform Law Review 31 at 38; specifically on
conflicts with the CISG see Schroeter UN-Kaufrecht und Europäisches Gemein-
schaftsrecht supra fn 8 at § 9 para 41.
155
On this German legal term, see Schroeter UN-Kaufrecht und Europäisches Ge-
meinschaftsrecht supra fn 8 at § 7 paras 27-30.
non-application to be made to the depositary in order discard the CISG’s ap-

plicability in favor of these unified or harmonised legal rules.
Although the applicability of Articles 90 and 94 CISG to secondary Eu-
ropean Community law is still hotly disputed, it is submitted that Article 90
CISG can neither be applied to EC regulations nor EC directives,156 as these
acts do not qualify as ‘international agreements’ and have – maybe more
importantly – not been entered into by Contracting States to the CISG (as re-
quired by Article 90 CISG), but rather enacted by the European Community,
a legal entity not party to the Convention.157 Secondary European Commu-
nity law could therefore only displace the CISG by way of Article 94 CISG
(as EC regulations introduce the ‘same’ and EC directives – at least in most
cases – ‘closely related legal rules’),158 but would require the necessary reser-
vations to be expressly declared (Article 97(2) CISG). The latter requirement
will contribute to legal certainty,159 and may even lead the EC Member States
to reconsider the desirability of discarding the existing global uniform law in
favor of a merely regional harmonisation of laws.
156
Ferrari, F (2003) ‘Universal and Regional Sales Law: Can They Coexist?’
Uniform Law Review 177 at 182; Janssen, A (2003) ‘The final seller’s right of redress
under the Consumer Sales Directive and its complex relationship with the CISG’
European Legal Forum 181 at 183; Magnus Kommentar supra fn 40 at Art 90 paras
4, 10; Schlechtriem in Schlechtriem & Schwenzer Commentary supra fn 17 at Art 90
paras 12-13; Schroeter UN-Kaufrecht und Europäisches Gemeinschaftsrecht supra fn
8 at § 9 para 45. Contra Herber, R in Schlechtriem, P (ed) (1998) Commentary on the
UN Convention on the International Sale of Goods Oxford University Press at Art 94
para 3; Herber and Czerwenka Internationales Kaufrecht supra fn 9 at Art 90 para 4;
Siehr, K in Honsell, H (ed) (1997) Kommentar zum UN-Kaufrecht Springer at Art 90
para 7; Witz in Witz, Salger & Lorenz International Einheitliches Kaufrecht supra fn
11 at Art 90 para 3.
157
See in more detail Schroeter UN-Kaufrecht und Europäisches Gemeinschafts-
recht supra fn 8 at § 9 paras 33-40.
158
Janssen ‘The final seller’s right of redress’ supra fn 156 at 183-184; Magnus
Kommentar supra fn 40 at Art 94 para 1; Schroeter UN-Kaufrecht und Europäisches
Gemeinschaftsrecht supra fn 8 at § 10 para 11. Contra Ernst, B (2002) Das Wie-
ner Übereinkommen von 1980 über Verträge über den internationalen Warenkauf
(UN-Kaufrecht) im Recht der Produkthaftung Shaker 98; Ferrari in Schlechtriem &
Schwenzer Kommentar supra fn 78 at Art 94 para 5.
159
para 3; but see Torsello ‘Reservations’ supra fn 21 at 95 (who reaches the opposite
conclusion).
At the time of writing, no declaration under Article 94 CISG in favor of

European Community law has been made, and the prevalence of the Conven-
tion accordingly stands.160
Future Accessions: The Limitation to ‘States’

(Article 91(3) CISG)
When thinking about the future of the Convention, one might contemplate a
future accession not only by other States, but also by regional or international
organisations. Such a step, which has already been advocated by commenta-
tors with a view to a possible accession of the European Community to the
CISG,161 raises the interesting question if the Final Provisions of the CISG
allow for the membership of an international entity as the European Com-
munity or, for example, the OHADA.
The relevant provision is Article 91(3) CISG, which provides that the
Convention ‘is open for accession by all States which are not signatory
States as from the date it is open for signature’. This so-called ‘all-states
clause’ is in accordance with Article 6 of the Vienna Convention on the Law
of Treaties, which addresses the related issue of each State’s capacity to con-
clude treaties. At the time of its adoption in 1980, Article 91(3) CISG was
considered a liberal clause, as comparable provisions in older conventions
had often stated that only Member States of the UN or of one of its special
agencies could become Contracting States,162 thereby excluding accession
by States that were not internationally recognized and, for that matter, by
international organizations.
The wording of Article 91(3) CISG as it stands, however, still only pro-
vides for an accession of ‘States’ to the Convention. The European Com-
160
Cf also Article 307(2) EC Treaty.
161
Basedow, J (2003) ‘Die Europäische Gemeinschaft als Partei von Übereinkom-
men des einheitlichen Privatrechts’ in Schwenzer, I and Hager, G (eds) Festschrift
für Peter Schlechtriem zum 70. Geburtstag Mohr Siebeck 165; Hartley, T (1979) The
Law relating to the International Sale of Goods Commission of the European Com-
munities para 1.30; Schwartze, A (2000) Europäische Sachmängelgewährleistung
beim Warenkauf Mohr Siebeck 597 (for an accession of the European Union).
162
para 2 fn 2.
munity, on the other hand, clearly does not constitute a State in the sense
employed by public international law, which, according to some authors,
suffices to effectively bar an accession of the European Community.163 The
better reasons, it is submitted, militate in favor of a more flexible interpre-
tation of Article 91(3) CISG, which would also be in accordance with the
practice that has developed in the application of this treaty provision (cf Ar-
ticle 31(3)(b) Vienna Convention on the Law of Treaties): The fact that the
USSR became a Contracting State at a time when the Byelorussian SSR and
the Ukrainian SSR – which formed part of the USSR, but had both not been
recognized as sovereign by most States164 – were already Contracting States
to the CISG in their own right, aptly demonstrates that political factors have
always played a significant role within the interpretation of Article 91(3)
CISG. The wording of this final provision thus does not necessarily prevent
an accession by the European Community.165
More important problems are raised by the application of Article 1(1)(a)
CISG in constellations involving international organizations: As this central
provision requires the parties to have their places of business in different
Contracting States, the legal status of the European Community as one Con-
tracting State would result in all intra-Community contracts failing to fulfill
the requirements of Article 1(1)(a) CISG – all EU companies would sudden-
ly be based within one and the same Contracting State.166 The application of
Article 1(1)(a) CISG to international organizations comprising several States
which, in their own right, also qualify as Contracting States under the Con-
vention, does therefore not correspond to the CISG’s sphere of applicability,
and would create significant legal uncertainty. It is submitted that the reason
163
Basedow ‘Die Europäische Gemeinschaft als Partei von Übereinkommen’ supra
fn 161 at 180-181; Tilmann, W (1993) ‘Eine Privatrechtskodifikation für die Euro-
päische Gemeinschaft?’ in Müller-Graff, P-C (ed) Gemeinsames Privatrecht in der
Europäischen Gemeinschaft Nomos 485 at 488.
164
Aust Modern Treaty Law supra fn 19 at p 312.
165
Schroeter UN-Kaufrecht und Europäisches Gemeinschaftsrecht supra fn 8 at
§ 19 para 41.
166
See Secretariat’s Commentary in Official Records supra fn 36 p 14 at Art 1 no
3: ‘This Convention is not concerned with the law governing contracts of sale or their
formation where the parties have their places of business within one and the same
State.’
why the European Community cannot acceed to the CISG accordingly lies in
the Convention’s Part I (namely Article 1(1) CISG), not its Part IV.167
Conclusion
The present article has tried to demonstrate that the CISG’s ‘Final Provi-
sions’, although routinely neglected by commentators, often play an impor-
tant role in the Convention’s application. The existing case law on Articles
89-101 CISG shows that courts and arbitral tribunals have generally been
able to handle the difficulties that the interpretation of ‘Part IV’ occasionally
presents, and that – with one notable exception168 – the goal of an internation-
ally uniform interpretation (Article 7(1) CISG) has largely been achieved.
Apart from the role they play within the CISG’s everyday application, the
Convention’s ‘Final Provisions’ have yet a different purpose to fulfil: They
provide the framework that will determine if the Convention, as it is growing
older, has the necessary flexibility to adapt to the legal and political changes
that the future may hold. Insofar, Part IV may indeed be described as the
Convention’s ‘backbone’: Like every backbone, it sustains and gives firm-
ness to the entire body (of the CISG), and as long as it is being treated with
care, one might almost be tempted to forget it exists.
167
Schroeter UN-Kaufrecht und Europäisches Gemeinschaftsrecht supra fn 8 at
§ 19 paras 44-47.
168
On the divergent case law on the effect of a reservation under Article 96 CISG,
see supra p 441-444.

Schroeter, Backbone or Backyard of The Convention, in FS Kritzer (2008), S. 425

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Schroeter, The CISG’s Final Provisions 425

Backbone or Backyard of the Convention?

The United Nations Convention on Contracts for the International Sale of

Interpretation of Articles 89-101 CISG

In order to be able to deal with pertinent issues involving the Convention’s

Provisions Governing the Interpretation

In this respect, a number of different approaches have been advocated: While

Language Versions of the Convention

A special question that may arise in the course of interpreting Part IV of

tween enterprises situated in these States), Article 95 CISG (entitling States

Conditions Under Which a Reservation May Be Made under the CISG

Conditions Laid Down by CISG’s Reservations

what is to be considered as ‘closely related’.40 The vagueness as to this res-

Legal Consequences when Conditions are not (or no longer) Satisfied

As has been demonstrated, most prerequisites mentioned in Articles 93, 94

Time at which a Reservation may be made

Legal Effects of Reservations made

Effect as to Subject Matter: Which of the Convention’s Rules are Modified?

involved has his place of business in an Article 96 CISG reservation State,

Chinese respectively Russian law to CISG contracts. It has furthermore been

Effect as to Addressee: Which Countries’ Courts have to Observe the Res-

Articles 92, 93, 94 CISG

ticle 1(1)(b) CISG) point to the law of an Article 95 CISG-reserving State? A

Temporal Scope of Effect: When does the Reservation’s Effect Commence

Generally speaking, a reservation under the Convention takes effect either

ed a notification pursuant to Article 94(1) CISG,91 the Iceland-Scandinavian

Unclear Reservations (and How to Avoid Them)

Even when properly construed, any reservation to a uniform law convention

The Armenian Declaration

How to Avoid Unclear Reservations

Against this background, it constitutes a desirable goal to develop procedures

Interpretation of Unclear Reservations by the Courts

In cases in which an unclear reservation has been made, it will be up to the

CISG contracts, as this reading conforms to the reservation’s effect as laid

Occasionally, Contracting States attach to their instruments of accession

Examples of Declarations ‘Interpreting’ the CISG

The Hungarian Declaration on Article 90 CISG

When Hungary on 16 June 1983 deposited its instrument of ratification with

The German Declaration on Articles 1(1)(b) and 95 CISG

Legal Significance of Interpretative Declarations

The CISG’s Final Provisions do not address interpretative declarations. Their

Interpretative Declarations and Interpretative Domestic Legislation

interpretation of the CISG provisions concerned, given that Article 27 Vi-

Succession of States and The cisg

The Succession of States122 is a phenomenon that has gained some impor-

respect of Treaties of 23 August 1978 are regarded as codifying customary

Uniform Law in a World of Shifting Borders

Effect of State successions upon the Status as a CISG ‘Contracting

Dissolution and Separation of States

separation from a predecessor State which continues to exist (‘separation’ or

Another group of successor States refrained from filing a notice of suc-

Territory of a State Becoming Part of Another State

A somewhat different development takes place when a certain territory

Successions and Reservations

The Convention’s Relationship with other

non-application to be made to the depositary in order discard the CISG’s ap-

At the time of writing, no declaration under Article 94 CISG in favor of

Future Accessions: The Limitation to ‘States’

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